REPORTS  OF  CASES 


DECIDED  IN  THE 


COURT  OF  CHANCERY 


OF  THE 


STATE   OF   NEW   JERSEY, 


IsT.  SAXTOIST.   Reporter. 


SECOND  EDITION, 


W11H    NOTES   BY  JOHN    LINN,  ESQ.,   OF   THE    HUDSON   COUKTY   BAB. 


VOI/UIVEE:  i. 


JERSEY    CITY: 
FREDERICK  D.   LINN  &  CO. 

1 886. 


CHANCELLOR 

DURING  THE  PERIOD  OF  THIS  REPORT, 
Hon.  PETER  D.  VROOM. 


778377 


The  letter  v  follows  the  name  of  the  complainant. 


Page. 
Ackerman's  Ex'rs,  Church  at  Aquac- 

kanonk v 40 

Allen,  Smith  v 43 

Attorney-General  v.  Stevens 369 

Axtell's  Adm'r  v.  Axtell 494 


B.- 


Baldwin v.  Johnson 441 

Bank  of  New  Brunswick  v.  Hassert      1 

Bertholf,  Crawford  v 458 

Black,  Stevenson  v.. 338 

Buckley  v.  Corse 504 

Bullock  v.  Butcher's  Ex'r 489 

Butler's  Ex'r,  Meeker  v 198 


Cammann  v.  Traphagan's  Ex'r..  28,  230 

Caskey,  Decker  v 427 

Chosen  Freeholders  of  Burlington, 

Tucker,  v 282 

Church  at  Acquackanonk  v.  Acker- 
man's Ex'rs. 40 

Church  at  Freehold  v.  Smock 148 

Clark  v.  Smith 121 

Clutch  v.  Clutch 474 

Conklin,  Crane  v 346 

Conover's  Ex'rs  v.  Conover 403 

Copper  v.  Wells 10 

Corse,  Buckley  v 504 

Covenhoven's  case 19 

Crane  v.  Conklin 346 

Crawford  v.  Bertholf.. 458 


D. 

Darcy,  Jackson  v 194 

Decow,  Hendrickson  v 577 

Decker,  Caskey  v 427 

Disborough  v.  Outcalt 298 


E. 

Page. 

Eden's  Ex'r  v.  Rathbone....  , 331 

Emans'  Adm'rs,  Hinchman  v 100 


F. 


Ford,  Miller  v 358 

Fox,  Gray  v 259 


G. 


Glover  v.  Hedges. 
Gray  v.  Fox 


113 
259 


H. 


Haight,  The  Society  for  Establish- 
ing Useful  Manufactures  v 393 

Hassert,  Bank  of  New  Brunswick  v.       1 

Hedges,  Glover  v 113 

Hendrickson  v.  Ivins 562 

Hendrickson  v.  Decow 577 

Herbert  v.  Tuthill's  Ex'r 141 

Hill  v.  Miller's  Ex'rs 435 

Hillyer,  Wilson  v 63 

Hinchman  v.  Emans'  Adm'rs 100 

Hunton,  Stark  v 216 

I  &  J. 

Ivins,  Hendrickson  v 562 

Jackson  v.  Darcy 194 

Johnson,  Baldwin  v 441 

K. 
King  v.  Morford 274, 


Leggett  v.  The  New  Jersey  Manu- 
facturing and  Banking  Co 541 1 


VI 


CASES  REPORTED. 


M. 

Marselis  v.  The  Morris  Canal  and 

Banking  Co 31 

Marselis,  Shannon  v 413 

Marsh,  State  Bank  at  Elizabeth  v...  288 

Meeker  v.  Butler's  Ex'r 198 

Mickle's  Ex'r  v.  Rambo 501 

Miller  v.  Ford 358 

Miller  v.  Miller 386| 

Miller  v.  Wack 204 

Miller's  Ex'rs,  Hill  v 435' 

Morford,  King  v 274 

Morris    Canal    and    Banking  Co., 

Marselis  v 31 

Morris    Canal    and    Banking  Co., 

Southard  v 518 

Morris    Canal    and    Banking  Co., 
Society  for  Establishing  Useful 

Manufactures  v 157 

Murphy  v.  Stults 560 


N. 

New    Jersey    Manufacturing    and 

Banking  Co.,  Leggett  v 541 

Newbold'e  Ex'rs,  Prichett  v 571 


O. 

Outcalt,  Disborough  v 298 

P. 

Prichett  v.  Newbold's  Ex'rs 571 

Q. 

Qnackenbush  v.  Van  Riper 476 

Quick  y.  Quick 4 

R. 

Rambo,  Mickle's  Ex'r  v 501 

Rathbone,  Eden's  Ex'r  v 331 

Richards,  Youle  v 534 

Rodman  v.  Zilley 320 

8. 

Scudder  v.  The  Trenton  Delaware 

Falls  Co 694 

Simmon's  Ex'r  v.  Vandegrift. ........     55 

Shannon  v.  Marselis , 413 

Shaver  v.  Shaver ;....  437 

Skillman  v.  Teeple 232 


Skillman  v.  Van  Pelt 511 

Smith  v.  Allen •...     43 

Smith  v.  Wood ; 74 

Smith,  Clark  v 121 

Smock,  Church  at  Freehold  v. 148 

Society  for  Establishing  Useful 
Manufactures  v.  The  Morris  Ca- 
nal and  Banking  Co 157 

Society     for    Establishing    Useful 

Manufactures  v.  Haight 393 

Southard  v.  The  Morris  Canal  and 

Banking  Co 518 

Staflbrd  v.  Stafford 525 

Stark  v.  Hunton 216 

State  Bank  at  Elizabeth  v.  Marsh...  288 

Stevens,  Attorney-General  v „  369 

Stevenson  v.  Black 338 

Stults,  Murphy  v 560 


T. 


Tallman,  Vanderveer  v ,.  8 

Taylor,  Wallingtonv 314 

Teeple,  Skillman  v 232 

Traphagan's  Ex'r,  Cammann  V....28,  230 
Trenton  Delaware  Falls  Co.,  Scud- 

der  v 694 

Tucker  v.  The  Chosen  Freeholders 

of  Burlington 282 

Tuthill's  Ex'r,  Herb.ert  v 141 


V. 

Van  Buskirk,  Wanmaker's  Ex'rs  v.  685 

Vandegrift,  Simmon's  Ex'r  v 55 

Vanderveer  v.  Tallman 8 

Vanness  v.  Vanness 248 

Van  Pelt,  Skillman  v 511 

Van  Riper,  Quackenbush  v 476 


W. 

Wack,  Miller  v 204 

Wallington  v.  Taylor 314 

Wanmaker's  Ex'rs  v.  Van  Buskirk  685 

Wells,  Copper  v 10 

Wilson  v.  Hillyer 63 

Wood,  Smith  v 74 


Y. 

Youle  v.  Richards.... 534 


Z. 


Zilley,  Rodman  v 320 

Zule  v.  Zule....  .    96 


CASES 
CITED  IN  THIS  VOLUME. 


A.' 

Adsit  v.  Adsit,  4  Johns.  C.  448.... 

Adye  v.  Feuilleteau,  1  Cox  24 

Allen  v.  Anthony,  1  Meriv.  282... 
Allen  v.  Randolph,  4  J.  C.  697.... 


Page. 
..  225 
..  264 
455 
204 


Armstrong  v.  Lear,  12  Wheat.  169..  334 

Armitage  v.  Wadsworth,  1  Mad.  110  366 

Astor  v.  Romayne,  1  John.  C.  310..  367 
Attorney-Gen,  v.  Brown,  1  Swansl. 

294 366 

Atkin  v.  Farr,  1  Atk.  287 212 


B. 

Baker  Case,  19  Ves.  340 25 

Baker  v.  Mellish,  10  Ves.  544 3f>6 

Baker  v.  Paine,  1  Ves.,  Sen.,  456...     53 


Page. 
Boyd  v.  Heingelraan,  1  Ves.  &  B. 

381 409 

Brinkerhoff'  v.  Brown,  6  John.  Ch. 

139 37 

Bryant  v.  Perry,  1  John.  C.  56 306 


Burn  v.  Burn,  3  Ves.,  Jr.,  573 

Burn  v.  Burn,  3  Ves.,  Jr.,  573. 


569 
53 
Bush  v.  Livingston,  2  Caines'  Ca.  66  210 


C. 


Cable  v.  Moore,  1  Johns.  Ch.  387... 

Cailland  v.  Estmick  Anst.  381 

Cathcart  v.  Robinson,  5  Pet.  279.... 
Charaley  v.  Dusaney,  2  Sch.  &  Lef. 

718 

Chamberlyn   v.   Delarive,  2  Wils. 


353 


138 
306 
358 

424 
91 


Baker  v.  Paine,  1  Ves.,  Sen.,  456...  568 i  I  Chesterfield  v.  Jansen,  2  Ves.  155...  110 
Ball  v.  Montgomery,  2  Ves.,  Jr.,  195  388J]Childerns  v.  Saxby,  1  Vern.  207....  213 
Balmaine  v.  Shore^  9  Ves.,  Jr.,_500  82  iChohnondely  v.  Clinton,  2  Mer.  361  472 


Bank  of  Alexandria  v.  Seton,  1  Pet. 


299. 


557 
Bank  of  Columbia  v.  Patterson,  7 

Cra'nch  306... 557 

Bank  of  TJ.  S.  v.  Dand ridge,  12 

Wheat.  64 553 

Baptist  Church  v.  Mulford,  3  Halst. 

183 550 

Barstow  v.  Kilvington,  5  Ves.,  Jr., 

593 54 

Bateman  v.  Miller,  1  Sch.  &.  Lef. 

201 483 

Bayley  v.  Adams,  6  Ves.  586 204 

Bayard  v.  Hoffman,  4  John.  C.  450  307 

Bealey  v.  Shaw,  6  East.  208. 187 

Beckwith  v.  Butler,  1  Wash.  224...  209 

Beekman  v.  Frost,  18  John.  562 456 

Bell  v.  Morrison,  1  Pet.  351 411 

Belknap  v.  Belknap,  2  John.  C.  463  717 

Bennet  v.  Vade,  2  Atk.  339 354 

Birkley  v.  Presgrave,  1  East.  227...  37 
Birmingham  v.  Kirwan,  2  Sch.  & 

Lef.  414 225 

Blore  v.  Sutton,  3  Meriv.  247 16 

Board  man  v.  Jackson,  2  Ball  & 

Beatty  382 209 

Bonithon  v.  Hockmore,  1  Vern.  316  137 
Bouverie  v.  Prentice,  1  Bro.  C.  C. 

200....  ,     36 


Christopher  v.  Sparks,  2  J.  &  W. 

233 690 

Clarkson  v.  Hannay,  2  P.  Wins. 

203 353 

IClark  v.  Mundal,  1  Salk.  124 92 

IClark  v.  Washington,  12  Wheat.  40  553 
Clinan  v.  Cook,  1  Scho.  &  Lef.  39...  54 
Clinch  v.  Wi^herly,  Can.  Temp. 

Finch  376 537 

Clochester  v.  Lowton,  1  Ves.  &  B. 

226 550 

Cooke  v.  Clayworth,  18  Ves.  12 357 

Cooper  v.  Cooper,  Hop.  233 267 

Coolidge  v.  Williams,  4  Mass.  145..  383 
Coles  v.  Jones,  2  Ves.  692 425 


Commonwealth  v.  Coombs,  2  Mass. 


489. 


382 


Cory  v.  Cory,  1  Ves.,  Sen.,  19 357 

Crockford    v.   Alexander,   15  Ves. 


138. 


717 
43 
Crow  v.  Tyrrell, "3  Mad.  99.... 354 


Crockett  v.  Dolby,  3  Ves.,  Jr.,  16.. 


D. 


Daniels  v.  Davison,  16  Ves.  254 455 

Dauphin  Turnpike  Road  v.  Meyer, 
6  Serg.  &  Rawle  12 550 


via 


CASES  CITED. 


Davy  v.  Baker,  2  Atk.  2 43fi; 

Dawkes  v.  Deloraine,  3  Wils.  213...  90' 

Deforest  v.  Lute,  16  John.  127 61 

Den  v.  Steelman,  5  Hals.  193 305 

Den  v.  Lecony,  Coxe  N.  J.  39 61 1 

Denton  v.  Stewart,  1  Cox  258 16 

Denning  v.  Smith,  3  John.  Ch.  345  73 
Doe  v.  Knight,  5  Barn.  &  Cress. 

671 467 

Doolittle  v.  Lewis,  7  John.  C.  51...  335 

Donovan  v.  Finn,  Hopk.  59 309 

Donovan  v.  Finn,  Hopk.  74 306 

Dorchester  v.  Effingham,  Coop.  Eq. 

319  -  227 

Drage  v.  Strong,  2  John.  C.  230 482 

Dondas  v.  Duters,  1  Ves.,  Jr.,  196..  306 


E. 


E«u«t  India  Co.  v.  Boddam,  9  Ves. 

466 211 

Edwards  v.  Edwards,  2  Dick.  755...  508 
Egberts  v.  Peinberton,  7  John.  C. 

208 307 

Essex  Turnpike  Corp.  v.  Collins,  8 

Mass.  299 553 

Evans  v.  Llewellen,  2  Bro.  C.  C. 

150 354 


F. 


Faine  v.  Winans,  1  Hopk.  283 137 

Fanning  v.  Dunham,  5  John.  C. 

122 - 365 

Farrant  v.  Lood,  3  Atk.  686 538 

Fell  v.  Lutwidge,  2  Atk.  120 334 

Fellows  v.  Fellows,  4  John.  Ch.  25..  9 

Flamag's  Case,  7  Ves.  308 521 

Fleckner  v.  U.  8.  Bank,  8  Wheat. 

360 553 

Foote  v.  Colvin,  3  John.  222 305 

French  v.  Burr,  2  Atk.  120 137 

Fry  v.  Porter,  1  Ch.  Ca.  141 538 

Fry  v.  Penn,  2  Bro.  C.  C.  280 366 

Fulton  Bank  v.  Beach,  1  Paige  Ch. 

429 


365 


G. 


Green  v.  Hart,  1  John.  580 2U 

Green  v.  Winter,  1  John.  Ch.  27...  Ib8 
Greenaway  v.  Adams,   12  Ves.,  Jr., 

401 15 

Gwillim  v.  Stone,  14  Ves.,  Jr.,  128     16 


H. 

Hadden  v.  Spader,  20  John.  554....  308 

Haightjv.  Day,  1  John.  C.  18 384 

Haight  v  Morris  'Aqueduct  Co.,  4 

Wash.  C.  C.  601 716 

Hale,  Ex  parte,  7  Ves.,  Jr,  261 23 

Hanson  v.  Gardiner,  7  Ves.  305 717 

Harris  v.  Inzleden,  3  P.  Wms.  99...  424 

Harrison  v.  Heathcote,  1  Atk.  538..  456 

Harrison  v.  Cockrell,  3  Mer.  1...."..  507 

Hardon  v.  Parsons,  1  Eden  145 266 

Hardingham  v.  Nicholls,  3  Atk. 

304 456 

Hare  v.  Shearwood,  1  Ves.,  Jr.,  241  399 

Hart  v.  Ten  Eyck.  2  J.  C.  92 210 

Haring  v.  Fernis,  Gibb  Eq.  Ca.  85..  471 

Harson  v.  Derby,  2  Vern.  392 538 

Hayden  v.  Middlesex  Turnpike 

Corp.,  10  Mass.  403 553 

Hele  v.  Hele,  2  Ch.  Ca,  28 692 

Heneage  v.  Hunloke,  2  Atk.  456...  568 

Heneage  v.^Hunloke,  2  Atk.  456....  53 
Hendricks  v.  Eobertson,  2  J.  C. 

312.. 306 

Henry  v.  Davis,  7  John.  C.  42 538 

Henkle  v.  Royal  Exc.  Assurance 


364 
568 


Co.,  1  Ves.,  Sen.,  317. 
Henkle  v.   Royal  Exc.  Assurance 

Co.,  1  Ves.,  Sen.,  317. 
Hepburn    v.     Dunlap     &    Co.,    1 

Wheat.  204 327 

Hester  v.  Western,  1  Vern.  463 37 

Hiern  v.  Mill,  13  Ves.  120 455 

Higginsou  v.  Clowes,  15  Ves.,  Jr., 

516.... 


54 


Hinkle   v.  Royal   Exc.  Assurance 


Gaskill  v.  Harman,  6  Ves.,  Jr.,  159 

Gibbs  v.  Cole,  3  P.  Wms.  255.. 717 

Gibson  v.  Bott,  7  Ves.,  Jr.,  89 43 

Giles  v.  Baremore,  5  John.  C.  545..  693i 
Gillespie  v.  Moor,  2  John.  C.  585...  569 
Gillespie  v.  Moor,  2  John.  C.  585...  54 
Goodrich  v.  Pendleton,  4  John.  C. 

549 335 

Goodtitie  v.  Otway,  2  Wils.  6 154 

Goodfrey  v.  Watson,  3  Atk.  578 137 


Co.,  1  Ves.,  Hen.,  317 53 

Hillary  v.  Waller,  12  Ves.  265 694 

Hillary  v.  WTaller,  12  Ves.  266 690 

Hill  v.  Caillovel,  1  Ves.  122 425 

Hinton  v.  Benson,  1  Plowd.  497 425 

Hixon  v.  Oliver,  13  Ves.  108 154 

Hollis  v.  Edwards,  1  Ves.  159 18 

JHolmes  v.  Dring,  2  Cox  1 265 

145  JHosburg  v.  Baker,  1  Pet.  U.  S.  232    51 


Humphreys  v.   Humphreys,   3   P. 

Wms.  350 334 

Humphreys  v.  Incledon,  1  P.  Wms. 

753 ,.    333 


I. 

Irnham  v.  Child,  1  Bro.  C.  C.  92...  399 


CASES  CITED. 


J. 


Jackson  v  Parker,  9  Cow.  73 305 

Jackson  v.  Robins,  16  Johns.  588...  164 

James  v.  Downes,  18  Ves.  522 508, 

James  v.  Cades,  2  Vern.  402  538; 

Jerome  v.  Ross,  7  John.  C.  331 717J 

Johnson  v.  Gree,  3  John.  C.  546 425 

Johnson  v.  Madlicott,  3  P.  Wins. 

130 356 

Jones  v.  Lewis,  2  Ves.  240 264 

Jones  v.  Earl  of  Strafford,  3  P. 

Wms.  90 1 409 

Jones  v.  Jones,  3  Mer.  161 366 

Jones  v.  Jones,  6  Conn.  Ill 467 

Jourviil  v.  Narish,  3  P.  Wms.  306..  426 


K. 

Kilvington  v.  Gardner,  1  Vern.  192  537 

Kip  v.  Brigham,  7  John.  271 51 

Kisselback  v.  Livingston,  4  John. 

Ch.  148 54 


L. 

Lansing  v.  Eddy,  1  John.  C.  49 

Lawrence  v.  Lawrence,  3  Vern.  365 
Le  Guen  v.  Gouverneur,  1  John. 

Ca.  436 

Leman  v.  Newaham,  1  Ves.  51 

Livingston  v.  Dean,  2  John.  C.  479 
Livingston  v.  Tompkins,  4  John.  C. 

41.5 

Loker  v.  Rolle,  3  Ves.,  Jr.,  4 

Loman  v.  Hide,  2  Vern.  185 

Loundes  v.  Loundes,  15  Ves.,  Jr., 

301 

Lowson  v.  Copeland  2  B.  C.  C.  156 
Lvtnan  v.  Utica  Ins.  Co.... 


M. 

Maitland  v.  Wilson,  3  Atk.  814 

Manning  v.  Manning,  1  John.  C. 

527 

Marshall  v.  Case,  3  Powell  957 

Marasco  v.  Boiton,  2  Ves.  112 

Maskelyne  v.  Maskelyne,  Arab. 

750 

Mason  v.  Garden,  4  B.  C.  C.  436.... 
Mathews  v.  Walwyn,  4  Ves.  118.... 
Mavor  v.  Doy,  2  Sim.  &  Stu.  113... 
Mayor  of  York  v.  Pilkington,  1 

Atk.  282 

McVicker  v.  Wolcott,  4  John.  533.. 

Meads  v.  Walker,  Hopk.  587 

Michell  v.  Harris,  2  Ves.,  Jr.,  129.. 


Movan  v.  Hayes,  1  John.  C.  343....  399 

Morgan  v.  Harris,  2  Bro.  C.  C.  124  366 
Morgan  v.  Schermerhorn,  1  Paige 

544 365 

Morley  v.  Morley,  2  Uh.  Ca.  2 264 

Muckieslon  v.  Brown,  6  Ves.  63 366 

Murray  v.  Lylburn,  2  John.  C.  441  425 


N. 


Nichols  v.  Chalie,  14  Ves.,  Jr.,  270     14 
Nurse  v.  Craig,  5  Bos.  &  P.  148 392 


0. 


Orr  v.  Newton,  2  Cox  274 266 

Osborn  v.  Bank,  9  Wheat  840.. 

Osgood  v.  .Fjanklin,  2  Johns.  C 


P. 


Partridge  v.  Goff,  Arab.  596 307 

Parkhurst  v.  Van  Cortlandt,  1  John. 

C.  274 17 

Paynes  v.  Coles,  1  Munf.  373 209 

Paxton  v.  Douglass,  19  Ves.  224....  51 
Phillips  v.  Thompson,  1  John.  C. 

131 17 

Potts  v.  Imlay,  1  South.  330 197 

Powell  v.  Evans,  5  Ves.,  Jr.,  844...  265 

Price  v.  James,  2  Bro.  C.  C.  319 366 


482 
225 

215 
692 
425 

51 
353 
137 

43 
2gc;!Randall  v.  Van  Veghten,  19  John. 

jj     65 

jRaven  v.  Waite,  1  Swans.  553 ,. 

Reigal  v.  Wood,  1  John.  C.  C.  406.. 

Reid  v.  Shergold,  10  Ves.  370 

Renison  v.  Ashley,  2  Ves.,  Jr..  459 

Reynolds  v.  Wall,  1  Wash.  164 

456  iRich  v.  Jackson,  4  Bro.  C.  C.  419... 

iRoopevelt  v.  Mark,  6  John.  C.  'J6o.. 

29«j  Roberts  Ex  parte,  3  Atk.  5,  308 

138;  Robinson  v.  Dusgale,  2  Vern.  181... 
507  Robinson  v.  Lord  Bvron,  1  Bro. 
C.  C.588.... 


557 
43 
353 
154 
366 
357 
3'J8 
591 
23 
153 

717 


154  Roche  v.  Morgell,  2  Scho.  &  Lef. 

365J      725 202 

425  Rogers  v.  Vosburgh,  4  John.  C.  84  409 
5 10! [ Ross  v.  Ross,  1  Jac.  &  Walk.  154...  154 

138 
139 
266 
3(16 
353 


Ross  v.  Ross,  1  Jac.  &  Walk.  154... 

||Russel  v.  Blake,  2  Pick.  505 

37i  Russell  v.  Smithers,  1  Anst.  9b' 

483!:Ryder  v.  Bickerton,  3  Swans.  80.... 

379  Ryves  v.  Ryves,  3  Ves.  343 

14  Ryves  v.  Ryves,  3  Ves.  343 


CASES  CITED. 


8. 


Sad  v.  Carter,  Prec.  in  Ch.  27 7 

Saunders  v.  Frost,  5  Pick 137 

Ssxton  v.  Davis,  18  Ves.  72 37 

Seton  v.  Slade,  7  Ves.  273 538 

8cott  v.  Shreave,  12  Wheat.  608 425 

Scott  v.  Nesbitt,  2  B.  C.  C.  649 365 

Scott  v.  Scholey,  8  East.  467 305 

Scrivener  Exp.,  3  Ves.  &  Beam.  14  365 
Sharp  v.  Ashton,  3  Via.  &  B.  144...  509 
Shaftsburg  v.  Arrow-smith,  4  Ves. 

65 : 354 

Shotwell  v.  Murray,  1  John.  C.  516  111 

Sibon  v.  Fletcher,  "l  Ch.  Ca.  59 692 

Simpson  v.  Vaughan,  2  Atk.  31 568| 

Simpson  v.  Hart,  1  John.  C.  98 482 

Simpson  v.  Vaughan,  2  Atk.  31 53 

Skip  Exp.,  2  Ves.  489 361 

Slee  v.  Bloom,  5  John.  C.  366 377 

Slee  v.  Bloom,  19  John  C.  474 186 

Smith  v.  Smith,  4  John.  C.  281 267 

Smith  v.  Rogers,  17  John.  340 91 

South  Sea  Co.  v?  D'Oliffe,  5  Ves., 

Jr.,  601 569 

South  Sea  Co.  v.  D'Oliffe,  5  Ves., 

Jr.,  601 53 

Southcot  Ex  parte,  2  Ves.,  Sen  ,  401  25 
Souvebye  v.  Arden,  1  John.  C.  240  467 
Slander  v.  Edwards,  1  Ves.,  Jr., 

113 119 

Steed  v.  Whitaker,  Barn.  C.  C.  220  471 

Street  v.  Rigby,  6  Ves.,  Jr.,  818 14 

Stent  v.  Robinson,  12  Ves.,  Jr.,  461.     43 
Stevens  v.  Cooper,  1  John.  C.  429  .. 
Stevens  v.   Beekman,    1   John.   C. 

318 , 521 

Stevens   v.   Beekman,   1   John.   C. 

318 715 

Stevens   v.  Beekman,   1   John.   C. 

318 717 

Stow  v.  Wyse,  7  Conn.  219 554 

St.  Mary's  Church,  7  Serg.  &  Rawle 

530..." 550 

Sullivan   v.   Alexander,   19   John. 

234 49 

Swan  v.  Swan,  8  Price  518... 136 


T. 


Taylor  v.  Hibbert,  2  Ves  ,  Jr.,  440..  454 

Taylor  v.  Jones,  2  Atk.  600 307 

Taylor  v.  Riggs,  ]  Pet.  597  211 

Taylor  v.  Radd,  3  Bro.  C.  454 54 

Thompson  v.  Lambe,  7  Ves.  587....  209 
Thornton  v.  Dixon,  3  Bro.  C.  C.  199     82 

Todd  v.  Ore,  17  Vea.,  Jr.,  274 16 

Toplis  v.  Baker,  2  Cox  118 692 


Townsend   v.   Devaysnes,    1    Mon- 
tague 97 82 

Trask  v.  White,  3  Bro.  C.  C.  289...  692 
Trecothlick  v  Austin,  4  Mass.  16...  334 
Trimleston  v.  Hamill,  1  Ball.  & 

Beat.  385 139 

Tweddell  v.  Tweddell,  1  Bro.  C.  C. 
152...  ,.    342 


U. 


U.  S.  v.  Sturges,  1  Paine  525 425 

Utterson  v.  Mair,  2  Ves.,  Jr.,  95 306 

Utica  Ins.  Co.  v.  Scott,  19  John  1...  559 
Uridale  v.  Halfpenny,  2  P.  Wins. 

151  ..                     ...'. 53 


V. 

Vigrass  v.  Binfield,  3  Mad.  40 266 


W. 

Wallwyn  v.  .Lee,  9  Ves.,  Jr.,  32 456 

Walker  v.  Svmonds,  3  Swans.  1 266 

Ward,  ExR.,*6  Ves.,  579 23 

Ward  v.  The  Duke  of  Northumber- 
land, 2  Anst.  469 36 

Ward  v.  Evans,  2  Ld.  Ray.  928...       91 

WTaring  v.  Ward,  7  Ves.  337 342 

Waters  v.  Taylor,  15  Ves.,  Jr.,  10...     14 

Watkins  v.  Bush,  2  Dick.  6C3 366 

Whaley  v.  Dawson,  2  Scho.  &  Lef. 

367 36 

\Vharton  v.  May,  5  Ves.  27 203 

White  v.  Small*  2  Ch.  C.  101 354 

Wijrglesworth    v.   Dallison,   Doug. 

201 400 

Wills  v.  Jernegan,  2  Atk.  250 203 

Williams  v.  Lee,  3  Atk.  223  483 

Wilkes  v.  Ferris,  5  John.  335 305 

Wilks  v.  Steward,  Coop.  Eq.  6 265 

Wilkes  v.  Davis,  Meriv.  509 14 

Windell  Case,  1  John.  C.  600 24 

W7iser  v.  Blachley,  1  John.  C.  607..     54 
Wiser  v.  Blachley,  1  John.  C.  601..  569 

Wooloy  v.  Drag,  2  Ans.  551 137 

Woolam  v.  Hearn,  7  Ves.,  Jr.,  211..     54 
Wordale  v.  Halfpennv,  2  P.  Wins. 
151...  " 568 


Y. 

Yates  v.  Groves,  1  Ves.,  Jr.,  280....  147 


CASES    DECIDED 


OF   THB 


STATE    OF     NEW -JERSEY, 

AT  JANUARY  TERM,  1830. 


THE    PRESIDENT    AND    DIRECTORS    OF   THE    BANK    OF    NEW- 
BRUNSWICK   v.  AARON  HASSERT  AND  OTHERS. 


Mere  inadequacy  of  price  is  not  sufficient  to  avoid  a  contract,  or  set  aside  a  sale 
made  by  the  sheriff,  when  no  fraud  or  irregularity  appears. 

Semble.     That  leaving  personal  property  purchased  at  sheriff's  sale  in  the  pos- 
session of  the  defendant,  is  not,  of  itself,  sufficient  to  vitiate  the  sale. 


The  bill  in  this  case  was  filed  by  the  complainants,  execution 
creditors,  against  the  defendant  in  execution,  the  sheriff,  and  the 
purchasers  at  a  sheriff's  sale,  made  under  a  prior  execution  ;  to 
set  aside  the  sale  on  the  ground  of  inadequacy  of  price,  and  al- 
leged fraud  and  irregularity  in  the  sale ;  by  which  the  rights  of 
the  complainants,  as  subsequent  execution  creditors,  were  de- 
feated. Disborough  and  Hutchings,  the  purchasers,  answered 
the  bill,  denying  the  charges  of  fraud  and  irregularity  complain- 
ed of.  Witnesses  were  examined.  The  facts  of  the  case  appear 
more  fully  in  the  opinion  of  the  court.  The  case  was  argued  by 

C.  L.  Hardenbergh,  for  the  complainants  • 
Gf  Wood,  for  the  defendants. 


CASES  IN  CHANCERY. 


Eank  of  New  Brunswick  v.  Hassert  et  al. 


THE  CHANCELLOR.  The  object  of  this  bill  is  to  set  aside  a 
sheriff 's  sale,  on  the  grounds  of  fraud  and  inadequacy  of  price,  and 
to  procure  a  re-sale  of  the  property.  It  is  charged  in  the  bill,  that 
in  June,  1820,  the  complainants  obtained  a  judgment  against 
Aaron  Hassert,  for  three  hundred  and  ninety-eight  dollars  and 
twenty-seven  cents,  on  which  an  execution  issued,  and  was 
placed  in  the  hands  of  Abraham  Vanarsdale,  esquire,  sheriff  of 
the  county  of  Middlesex ;  who  levied  on  various  articles  of  per- 
sonal property,  and  on  one  farm  and  sundry  lots,  containing  two 
hundred  acres  of  land,  subject  to  incumbrances :  that  there 
were  other  unsatisfied  judgments  and  executions  against  the 
same  defendant,  one  of  which  was  in  favor  of  the  executors 
of  Jacques  Voorhees,  deceased,  and  was  prior  to  the  complain- 
ants' :  that  considering  the  debt  safe,  the  execution  was  not  press- 
ed, but  proceedings  under  it  were  several  times  postponed  at  the 
special  instance  of  Hassert,  the  defendant,  he  promising  that  the 
money  should  be  shortly  paid  :  that  Hassert  afterwards  procured 
a  sale  to  be  made  by  the  sheriff,  without  the  knowledge  of  the 
complainants,  and  with  the  intent  to  defraud  them  :  that  the 
sheriff  sold  the  real  and  personal  property  in  November,  1823, 
without  having  advertised  the  same  for  that  day,  and  without  any 
regular  adjournment  from  some  previous  day  :  that  the  sale  was 
conducted  by  the  sheriff,  so  as  to  defeat  the  claims  of  creditors, 
and  meet  the  views  of  the  defendant  in  execution.  The  house- 
hold furniture  was  sold  all  together,  for  a  nominal  sum.  The 
personal  property,  worth  eight  hundred  to  one  thousand  dollars, 
was  sold  for  less  than  seventy  dollars.  That  the  real  property  was 
sold  for  a  mere  nominal  price.  That  Disborough  and  Hutch- 
ings,  two  of  the  defendants,  purchased  a  considerable  part  of  the 
real  as  well  as  of  the  personal  estate,  with  the  express  understand- 
ing that  Hassert  should  have  the  property  again  on  paying  some 
trifling  consideration.  That  the  personal  property  was  not  -re- 
moved, but  remained  after  the  sale,  as  before,  in  the  possession 
of  the  defendant  in  execution ;  and  that,  in  consequence  of  the 
fraudulent  conduct  on  the  part  of  the  defendant,  the  sheriff  and 
the  purchasers,  the  whole  amount  of  sales  was  absorbed  in  the 
payment  of  the  first  execution,  in  favor  of  the  executors  of 


JANUARY  TERM,  1830. 


Bank  of  New  Brunswick  v.  Has»sert  et  al. 


Jacques  Voorhees,  above  mentioned  :    and  the  complainants  are 
without  remedy  unless  a  re-sale  can  be  effected. 

Disborough  and  Hutchings,  two  of  the  defendants,  have  an- 
swered the  bill ;  and  although  their  answer  is  not  altogether  full, 
they  deny  in  express  terms  the  charges  of  collusion,  or  that 
they  purchased  for  the  benefit  of  Hassert.  They  allege,  that  they 
were  severally  the  creditors  of  Hassert,  and  had  no  means  of 
saving  themselves  but  by  purchasing  property  at  such  prices  as 
would  yield  them  a  profit.  They  further  allege,  that  the  sale  was 
regularly  advertised  according  to  law;  and  deny  that  the  sale  was 
without  the  knowledge  of  the  complainants  :  on  the  contrary,  they 
insist  that  the  complainants  were  notified  of  the  sale,  and  that 
persons  connected  with  the  bank,  and  concerned  in  its  affairs,  at- 
tended the  sale.  They  admit  that  the  personal  property  pur- 
chased by  them  was  not  removed,  and  assign  reasons  for  it, 
which,  though  not  very  satisfactory,  are  sufficient  to  repel  any 
presumption  of  fraud  arising  from  that  circumstance  alone.  This 
answer  was  filed  in  1825,  since  which  time  no  single  step  has 
been  taken  on  the  part  of  the  complainants.  A  number  of  depo- 
sitions have  been  taken  on  the  part  of  the  defendants  who  have 
answered.  From  these  depositions  it  appears  that  the  sale 
was  an  open  and  fair  sale ;  that  notice  was  given  to  the 
complainants  or  their  agents;  that  during  a  part  of  the  time 
Mr.  Hardenbergh,  the  president  of  the  bank,  attended ;  and 
two  of  the  directors  attended  the  sale  of^  the  real  property, 
under  the  special  appointment  of  the  board ;  that  Disborough 
and  Hutchings  both  stated  at  the  sale,  that  they  were  bid- 
ding for  themselves  individually,  and  on  some  of  the  property 
they  bid  against  each  other.  The  vendue  book  was  offered  in 
evidence  by  the  defendants,  and  an  examination  of  it  must  satisfy 
every  one,  that  much  of  the  personal  property  was  sold  at  very 
inadequate  prices.  But  on  what  ground  is  the  court  to  interfere 
in  this  case?  The  mere  inadequacy  of  price  is  not  sufficient  to 
avoid  a  contract  or  set  aside  a  sale.  The  fraud  and  collusion 
charged  in  the  bill,  is  denied  in  terms.  The  imputations  against 
the  sheriff,  arising  from  the  alleged  want  of  notice,  is  removed, 
and  the  charge  itself  disproved.  The  whole  ground  of  the  com- 
plainants' equity  is  then  removed.  The  complainants  have  been 


CASES  IN  CHANCERY. 


Quick  et  al.  v.  Quick  et  al. 


unfortunate,  it  is  true.  They  relied  on  the  promises  of  the  defend- 
ant in  execution,  and  he  deceived  them.  They  next  relied  upon 
receiving  the  money  out  of  the  proceeds  of  the  sales,  but  by  per- 
mitting the  property  to  be  struck  off  at  a  sacrifice,  although  stand- 
ing by  as  execution  creditors,  and  of  course  interested  in  the  amount 
of  the  sales,  they  were  .again  deceived.  Under  these  circumstances, 
it  is  not  now  in  the  power  of  this  court  to  render  them  any  assist- 
ance. I  presume  it  is  the  intention  of  the  parties  that  the  merits 
of  the  case  shall  be  decided  on  the  pleadings  and  evidence  sub- 
mitted;  and  being  clearly  of  opinion,  as  the  matter  now  stands, 
that  the  complainants  have  failed  to  establish  any  claim  for  equita- 
ble relief,  I  shall  order  the  bill  to  be  dismissed,  with  costs. 

CITED  ir\  Mercereau  v.  Prest,  2  Gr.  Ch.  463  ;  Marlatt  v.  Warwick,  3  C.  E.  Or. 
Ill ;  Kloepping  v.  Stdlmacher,  6  C.  E.  Gr.  329. 


JOSEPH  QUICK  AND  OTHERS  v.  KACHEL  QUICK  AND  OTHERS. 


The  testator  devised  as  follows:  I  devise  to  my  son  Abraham  Quick  the  remain- 
der of  my  land  in  Amwell,  &c.  "  to  him  the  said  Abraham  during  his  life 
time,  and  if  he  should  die  before  his  wife,  she  is  to  have  the  use  and  benefit 
of  the  said  devised  land  for  her  support  as  long  as  she  remains  his  widow 
and  no  longer;  and  at  her  decease  I  devise  the  same  to  his  heirs,  to  be 
divided  between  them  as  the  law  directs  when  any  die  intestate.  I  have  de- 
vised the  last  mentioned  tract  to  my  son  Abraham  subject  to  the  following 
incumbrances,  to  wit:  That  he  the  said  Abraham  is  to  pay  to  my  daughter 
Mary  one  hundred  and  fifty  pounds,  in  the  following  manner,  &c. ;  and  he 
the  said  Abraham  is  to  pay  to  my  daughter  Rosanna,  in  case  she  gets  mar- 
ried, thirty-seven  pounds  ten  shillings,  to  get  her  an  outset." — By  this  devise, 
the  whole  estate  in  the  devised  premises,  to  wit,  the  estate  for  life  and  the  re- 
mainders, is  charged  with  the  legacies  :  and  the  devisee  for  life  having  died 
without  paying  them,  and  his  estate  being  exhausted,  the  amount  due  on  the 
legacies  must  be  raised  out  of  the  land,  by  sale. 

The  devisee  for  life's  dying  insolvent,  before  payment  of  the  legacies,  the  legatees 
omitting  to  claim  the  same  of  his  administrator  within  the  time  limited  by 
rule  of  the  orphan's  court  and  a  decree  of  the  court  barring  creditors  who 
had  not  presented  their  demands  pursuant  to  the  statute;  do  not  affect  the 
claim  of  the  legatees  to  have  the  legacies  raised  out  of  the  lands  charged. 

Jacob  Quick,  in   and    by   his   last  will  and   testament,  dated 
8th  August,  1808,  after  devising  one  part  of  his  farm  to  his  son 


JANUARY  TERM,  1830. 


Quick  et  al.  v.  Quick  et  al. 


Ezeki<»l,  devised  the  other  part  as  follows :  "  I  devise  to  'ray  son 
Abraham  Quick  all  the  remainder  of  my  lands,  situate  in  the 
township  of  Amwell,  (describing  it  by  metes  and  bounds,)  con- 
taining one  hundred  and  twenty  acres,  more  or  less;  to  him  the 
said  Abraham  Quick  during  his  life  time;  and  if  he  should  die 
before  his  wife,  she  is  to  have  the  use  and  benefit  of  the  said  de- 
vised land  for  her  support  as  long  as  she  remains  his  widow,  and 
no  longer ;  and  at  her  the  said  widow's  decease,  I  devise  the  same 
to  his  heirs,  to  be  equally  divided  between  them  as  the  law  di- 
rects when  any  die  intestate.  I  have  devised  the  last  mentioned 
tract  of  land  to  my  son  Abraham  Quick,  subject  to  the  following 
incu  nib  ranees,  to  wit :  That  he  the  said  Abraham  Quick  is  to 
pay  to  my  daughter  Mary  Ewing  one  hundred  and  fifty  pounds, 
in  the  manner  following,  to  wit ;  one  hundred  pounds  'of  it  four 
years  next  after  my  decease,  and  the  remaining  sum  of  fifty 
pounds  to  be  paid  the  next  year  after.  A  nd  he  the  said  Abraham 
is  to  pay  my  daughter  Rosanna  Quick,  in  case  she  gets  married, 
the  sum  of  thirty-seven  pounds  ten  shillings,  to  get  her  an  out- 
set:" and  after  giving  some  pecuniary  legacies,  appointed  his  two 
sons,  Ezekiel  and  Abraham,  executors.  The  testator  died  in 
1816.  Upon  his  death  Abraham  Quick,  the  devisee,  took  pos- 
session of  the  devised  premises,  and  occupied  them  till  1822,  when 
he  died  intestate,  leaving  the  two  legacies,  to  Mary  Ewing  and 
Rosanna  Quick,  (who  had  intermarried  with  Joseph  Quick,)  un- 
paid ;  and  leaving  his  widow,  Rachel  Quick,  and  several  chil- 
dren, the  defendants  in  this  case,  living.  Administration  of  his 
estate  was  granted  to  David  Manners;  who,  finding  the  estate 
likely  to  prove  insolvent,  applied  to  the  orphans'  court,  and  under 
their  direction  proceeded  to  make  a  settlement  and  distribution 
thereof,  according  to  the  provisions  of  the  act  directing  the  dis- 
tribution of  the  estates  of  persons  who  die  insolvent.  The  claims 
of  the  legatees  were  not  presented  to  the  administrator,  or  any 
part  of  the  legacies  paid  out  of  the  estate.  After  the  estate  was 
distributed,  the  complainants  filed  their  bill  against  the  widow, 
heirs  and  administrator,  to  have  their  legacies  raised  and  paid 
out  of  the  lands  devised.  The  bill  was  taken,  pro  confesso, 
against  the  widow.  The  children,  being  minors,  put  in  the 
general  answer  by  their  guardian.  David  Manners,  the  adminis- 


CASES  IN  CHANCERY. 


Quick  et  al.  v.  Quick  et  al. 


trator  of  Abraham  Quick,  deceased,  in  his  answer,  admits  the 
devise,  &c.,  but  alleges  that  Abraham  Quick  died  insolvent; 
and  sets  forth  that,  having  disposed  of  the  personal  estate  of  the 
said  decedent,  and  the  same  appearing  to  be  insufficient  to  pay 
his  debts,  he,  the  said  administrator,  applied  to  the  orphan's 
court  of  the  county  of  Hunterdon,  in  May  term,  1823,  for  a  rule 
to  show  cause  why  the  real  estate  of  the  said  Abraham  Quick 
should  not  be  sold  for  the  payment  of  his  debts.  That  in  Octo- 
ber term,  1823,  the  court  made  an  order  for  the  sale  of  the  real 
estate.  That  by  virtue  of  the  said  order,  he,  the  said  administrator, 
sold  all  the  real  estate  of  said  deceased  ;  and  his  real  and  personal 
estate  appearing  to  be  insufficient  to  pay  his  debts,  the  said  court,  in 
May,  1823,  made  an  order,  directing  him  the  said  administrator  to 
give  notice  to  the  creditors  of  the  said  intestate's  estate,  to  exhibit 
their  claims  and  demands  against  the  estate  of  the  said  Abraham 
Quick,  deceased,  to  the  said  administrator,  under  oath  or  affirma- 
tion, within  six  months  from  the  date  of  the  order,  by  setting  up 
copies  of  said  order,  and  advertising  the  same,  pursuant  to  the 
statute;  which  notice  was  accordingly  given.  That  in  the  term 
of  February,  1824,  the  said  rule  was  made  absolute,  and  it  was 
decreed  by  the  said  court,  that  all  creditors  having  claims  or  de- 
mands against  the  said  estate,  and  who  had  neglected  to  present 
them  to  the  said  administrator  within  the  time  so  limited,  should 
be  barred  from  prosecuting  for  or  recovering  the  same  from  the 
administrator,  or  coming  in  for  a  dividend  of  said  estate.  The  said 
defendant,  in  his  answer,  farther  alleges  that  the  complainants,  or 
either  of  them,  or  any  person  on  their  behalf,  did  not  present  to 
the  said  administrator,  under  oath  or  affirmation,  their  claims  or 
demands  against  the  estate  of  the  said  Abraham  Quick,  de/seas- 
ed,  for  the  said  legacies  bequeathed  them  by  the  will  of  the  said 
Jacob  Quick,  deceased,  in  the  bill  of  complaint  mentioned,  within 
the  time  so  limited  by  the  said  rule  of  the  orphan's  court;  and 
the  defendant  insists,  that  by  the  laws  of  this  state  the  complain- 
ants are  for  ever  barred  from  recovering  the  said  demands  against 
him  as  administrator,  or  from  coming  in  for  a  dividend  of  the  said 
decedent's  estate.  The  answer  farther  states,  that  the  said  defen- 
dant, as  administrator  of  the  said  deceased,  made  sale  of  all  his 
real  and  personal  estate,  and  made  report  to  the  orphan's  court  of 


JANUARY  TERM,  1830. 


Quick  et  al.  v.  Quick  et  al. 


the  proceeds  of  the  sale  thereof,  and  of  the  amount  of  debts  and 
claims  against  the  said  decedent's  estate  presented  to  the  adminis- 
trator, under  oath  or  affirmation,  within  the  time  limited  by  said 
rule;  whereby  it  appeared  that  the  said  estate  was  insufficient 
to  pay  the  said  debts,  and  thereupon  a  dividend  of  eighty  cents 
to  the  dollar  was  decreed  by  the  court  to  be  paid  to  each  creditor 
entitled  to  distribution ;  and  that  all  the  moneys  that  have  come 
to  the  hands  of  the  defendant  as  administrator  of  the  said  de- 
ceased (except  the  amount  allowed  for  commissions  and  expenses) 
had  been  paid  out  to  the  creditors  whose  claims  had  been  regu- 
larly presented  according  to  law. 

A  replication   was  filed,  proofs   exhibited,  and  the   case   sub- 
mitted to  the, court  upon  the  points  stated. 

N.  Saxton,  for  the  complainants ; 
•  contra. 


THE   CHANCELLOR.     The   land   devised  is  charged  with  the 
legacies.     It  was  not  a  charge  upon  the  person  of  the  devisee 
merely,  or   upon   his  estate  or   interest   in   the   land,   but   upon 
the    whole    estate    in   the   land   devised.      If   Abraham    Quick 
had   died   before   his   father,   the    charge    would    have   remain- 
ed on  the  land,  in  favor  of  the  legatees.    'His  dying  afterwards, 
and  before  payment,  will  not  defeat  the  legacies.     Where  lands 
were  devised  to  A.  and  his  wife  for  their  lives,  -remainder  to 
such  of  the  children  as  should  be  living  at  the  death  of  the  sur- 
vivor of  them,  and  to  their  heirs,  A.  paying  forty  pounds  to  the 
plaintiff  at  a  certain  time ;  it  was  decreed  that  the  land  be  sold 
for  the  payment  of  the  money,  and  then  the  defendants  to  have 
such  a  proportion  of  the  overplus  of  the  purchase  money  as  was 
answerable  to  their  interest  t«r  life :  for  the  money  devised  is  a 
charge   upon   all  the  estate,  i.  e.  the  estate  for  life   and   the   re- 
mainders :  Sad    v.   Carter,  Preo.    in    Ch.   27  ;    2    Eq.    Ca.  Ab. 
370.     In  this  case,  the  personal  estate  of  Abraham  Quick,  the 
devisee  for  life,  is  exhausted  ;  and  the  amount  due  to  the  com- 
plainants, on  these  Jegacies,  must   be  raised  out-  of  the  land,  by 


CASES  IN  CHANCERY. 


Quick  et  al.  v.  Quick  et  al. 


sale.  Their  claim  upon  the  land,  for  the  satisfaction  of  their 
legacies,  is  not  affected  by  Abraham  Quick's  insolvency,  or  the 
proceedings  in  the  orphans'  court  barring  his  creditors  who  had 
not  presented  their  claims  within  the  time  limited. 

Let  it  be  referred  to  a  master  to  take  an  account  of  the  amount 
due  to  the  complainants,  and  ascertain  what  part  of  the  lands  so 
charged  may  be  sold  with  the  least  prejudice  to  the  remainder. 


CASES  IN  CHANCERY, 

OF  APKIL  TERM,  1830. 
VAN  DERVEEE  v.  TALLMAN  ET  AL. 


Injunction  allowed  as  to  defendant  in  a  bill  to  foreclose,  having  sold  timber 
standing  on  the  ground ;  but  not  as  to  the  purchasers,  by  name,  they  not 
being  parties  to  the  bill,  and  having  a  right  to  be  heard. 


This  was  a  bill  filed  to  foreclose.  Before  the  suit  the  mortgagor 
had  conveyed  to  George  Hancock  in  fee,  in  trust  for  certain  pur- 
poses ;  and  the  mortgagor  and  Hancock  were  made  parties,  and  also 
certain  other  persons,  claiming  to  have  a  lien  on  the  property. 
Pending  the  suit,  Hancock  sold  parcels  of  the  wood  growing  on  the 
premises  to  Isaac  Johnson  and  several  others  ;  and  the  complain- 
ant filed  his  petition,  setting  forth  the  facts  of  the  sale,  and  alleging 
that  Hancock  and  the  others  were  committing  great  waste  by  cut- 
ting down  the  timber;  and  praying  an  injunction  against  Han- 
cook,  and  also  against  the  purchasers  of  the  timber  and  wood 
growing. 

THE  CHANCELLOR.  An  injunction  cannot  issue  against  the 
purchasers  by  name,  they  not  being  parties  to  the  bill.  This  i3 
in  accordance  with  the  general  rule.  There  is  one  case  where  a 
bill  was  filed  against  one  set  of  tenants  to  restrain  waste,  and 
they  were  restrained  ;  another  set  commenced  cutting,  and  they 
were  injoined,  though  not  parties :  but  the  authorities  extend  on- 
ly to  tenants.  The  persons  here  are  purchasers,  and  have  a 
right  to  be  heard.  (Fellows  v.  Fellows,  4  Johnson's  Ch.  Rep. 
25.) 

Injunction  allowed  as  to  Hancock;  refused  as  to  the  purchasers. 

A.  Brown,  for  complainant. 


10  CASES  IN  CHANCERY. 


Copper  et  al.  v.  Wells  et  al. 


COPPER,  AND  THE  EXECUTOES  OF  CALBRAJTH,  v.  WELLS,  HOY, 

AND  OTHERS. 


Upon  a  bill  for  specific  performance  of  an  agreement,  that  at  the  expiration  of  a 
building  lease  the  buildings  and  machinery  should  be  valued  by  three  indif- 
ferent persons,  one  to  be  chosen  by  each  party  and  the  third  to  be  mutually 
chosen  by  them,  or  in  case  of  their  disagreement,  then  by  the  two  who  shall 
have  been  chosen  by  the  said  parties.  If  one  party  has  made  choice  of  an 
appraiser  and  the  other  refused  to  choose  one,  this  court  cannot  compel  him 
to  choose  one. 

If  the  appraiser  chosen  by  one  party,  without  the  concurrence  of  the  other,  made 
an  appraisement,  it  is  an  ex  parte  proceeding,  irregular  and  void. 

But  in  such  cases,  where  a  specific  performance  of  the  agreement  has  become 
impossible,  or  from  the  nature  of  the  contract  cannot  be  decreed,  the  party 
aggrieved  is  entitled  to  compensation  in  damages  for  the  non-performance  of 
the  agreement. 

There  is  a  distinction  between  damages  arising  from  the  non-performance  of  a 
contract,  which  damages  may  be  partly  imaginary,  and  partly  the  result  of 
actual  or  supposed  loss  or  inconvenience  ;  and  the  damages  to  which  a  party 
is  justly  entitled  for  repairs  or  beneficial  and  lasting  improvements,  under  the 
faith  of  an  engagement  which  is  afterwards  discovered  to  be  defective,  or 
impossible  to  be  executed  by  default  of  the  opposite  party.  In  the  first  case, 
the  damages  can  be  properly  assessed  only  by  a  jury  upon  an  issue  of  quantum 
damnificatus ;  in  the  last,  the  compensation  may  be  safely  ascertained  by  an 
inquiry  before  a  master,  or  commissioner,  or  at  the  discretion  of  the  court  an 
issue  may  be  awarded. 

In  cases  of  the  latter  description  the  jurisdiction  of  this  court  is  complete:  the 
party  has  a  clear  equity  to  be  restored  to  the  money  paid  for  improvements, 
which  are  rendered  valueless  to  him,  but  are  greatly  beneficial  to  the  owner 
of  the  land. 

Executors  of  a  mortgagee,  standing  in  the  place  of  the  testator,  have  an  interest 
in  the  controversy  ;  the  mortgage  is  in  their  hands,  and  they  have  a  right 
to  come  into  this  court,  to  be  satisfied  the  amount  of  it,  out  of  the  property 
bound  by  it,  or  its  proceeds. 

If  probate  was  granted  without  the  state,  query  f 


The  complainants'  bill  sets  forth,  that  Gideon  H.  Wells,  and 
Hannah  his  wife,  (who  is  since  deceased,)  being  seized  and  pos- 
sessed of  a  tract  of  land  in  Trenton,  through  which  the  Assan- 
pink  flows,  and  which  affords  an  extensive  water  power  for  the 
construction  of  manufactories,  entered  into  articles  of  agreement 
with  Hugh  Christy  and  five  others,  in  relation  to  the  establish- 
ment of  a  manufactory  on  the  said  stream.  The  articles  bear 


APRIL  TERM,  1830.  11 


Copper  et  al.  v.  Wells  et  al. 


date  on  the  30th  March,  1814.  Wells  and  wife,  the  party  of  the 
first  part,  covenanted  and  agreed  with  Christy  and  others,  the 
party  of  the  second  part,  that  they  would  furnish  the  party  of 
the  second  part  with  a  certain  quantity  of  water,  for  the  purpose 
of  carrying  on  certain  works  to  be  by  them  erected,  and  furnish 
them  with  a  lot  of  ground,  with  the  privilege  of  a  road  for  passing 
and  repassing  at  all  times ;  that  these  privileges  should  be  enjoyed 
by  the  party  of  the  second  part  for  fifteen  years  from  the  date 
of  the  articles,  at  the  yearly  rent  of  600  dollars.  The  party  of 
the  second  part  covenanted  and  agreed,  that  they  would  erect  on 
the  lot  a  suitable  stone  and  brick  building  for  the  purpose  of  a 
cotton  manufactory,  and  proceed  to  the  manufacturing  of  cotton 
as  soon  as  the  building  and  machinery  should  be  completed  for 
that  purpose,  and  would  pay  the  annual  rent  of  600  dollars  ; 
that  the  machinery  should  ( not  be  removed,  but  remain  in  the 
building  as  a  security  for  the  rent  reserved  ;  that  at  the  expiration 
of  the  said  term  of  fifteen  years,  the  building  and  the  machinery 
of  every  kind  shall,  if  so  desired  by  the  party  of  the  second  part, 
be  valued  by  three  indifferent  persons,  one  to  be  chosen  by  each 
of  the  parties,  and  the  third  to  be- mutually  chosen  by  them — or 
in  case  of  their  disagreement,  then  by  the  two  who  shall  have 
been  chosen  by  the  said,  parties;  and  the  said  building  and  im- 
provements shall  be  paid  for  by  the  said  party  of  the  first  part, 
agreeably  to  the  said  valuation — or,  the  term  of  the  said  party  of 
the  second  part  shall  be  continued  for  ten  years  longer,  on  the 
same  conditions,  if  the  said  party  of  the  second  part  shall  request 
the  same ;  that  at  the  end  of  the  said  additional  ternrof  ten  years, 
the  party  of  the  first  part  shall  be  at  liberty  to  prolong  the  same 
for  ten  years  more,  or  to  take  the  buildings  and  machinery  at  a 
valuation,  as  above  provided  ;  that  at  the  end  of  the  second  term 
of  ten  years,  the  buildings  and  machinery  of  every  kind  shall  be 
valued,  in  the  mode  before  stated,  and  paid  for  by  the  party  of 
the  first  part ;  that  the  said  instrument  was  duly  acknowledged 
and  recorded  ;  that  the  said  parties  of  the  second  part,  after  ac- 
quiring said  lease,  erected  on  the  premises  a  large  brick  building 
as  a  cotton  factory,  procured  machinery,  and  commenced  busi- 
ness upon  the  premises,  paying  the  rent  as  agreed  on  ;  that  by 
sundry  mesne  conveyances  the  shares  of  the  said  parties  of  the 
second  part  became  vested  in  John  Greiner  and  John  Groves — 


12  CASES  IN  CHANCERY. 

Copper  et  al.  v.  Wells  et  al. 

the  former  holding  five  shares,  and  the  latter  one  share ;  that  a 
judgment  was  obtained  against  the  said  Greiner  and  Groves  iu 
the  supreme  court  of  this'  state,  in  September  term,  1825,  on 
which  an  execution  afterwards  issued,  and  the  right  of  the  said 
defendants  in  the  said  property  was  sold  and  conveyed  by  the 
sheriff  of  the  county  of  Burlington  to  Wm.  Haverstick,  of  Phila- 
delphia, who  thereby  became  the  exclusive  owner  of  all  the  interest 
and  rights  of  the  original  lessees;  that  after  Haverstick  became 
owner,  he  entered  into  co-partnership  with  James  Hoy  in  the  man- 
ufacturing business — he  the  said  Haverstick  finding  the  funds,  and 
the  said  Hoy  devoting  his  labor  and  skill — the  profits  to  be  equal- 
ly divided  ;  that  on  the  29th  of  May,  1826,  Haverstick  and 
Hoy  gave  a  bond  to  Hector  Calbraith,  to  secure  the  payment  of 
$5000,  and  as  a  collateral  security  Haverstick  executed  to  the 
said  Calbraith  a  mortgage  on  all  his  right  and  interest  in  the  said 
premises;  that  .Calbraith  afterwards  departed  this  life,  leaving  a 
last  will  and  testament,  and  leaving  Hector  Thompson  and  Ste- 
phen Woolston  executors  thereof.  That  the  partnership  between 
Haverstick  and  Hoy  was  afterwards  dissolved,  and  on  or  about 
the  5th  of  March,  1829,  Haverstick  caused  a  notice  in  writing  to 
be  served  on  Gideon  H.  Wells  and  Charles  M.  Wells  and  Lewis 
Wain,, informing  them  that  he  intended  to  have  the  said  buildings 
and  machinery  appraised  by  three  indifferent  persons  in  the  man- 
ner prescribed  in  the  said  agreement,  and  that  he  had  chosen  John 
Woods  on  his  part  for  that  purpose,  and  would  attend  on  the 
premises  on  the  1 1th  of  March,  1829,  for  the  purpose  of  making  the 
valuation ;  and  the  said  Wells,  &c.  were  requested  to  choose  a 
person  and  unite  in  the  said  appraisement ;  and  also,  that  it  was 
his  intention  to  give  up  possession  of  the  said  premises.  That 
Haverstick  and  Woods  attended,  but  no  person  appeared  on  the 
other  side,  and  an  appraisement  was  made  by  Woods  alone,  the 
amount  of  which  was  $14,337.45. 

The  bill  further  states  that  Haverstick,  becoming  insolvent, 
executed  to  James  C.  Cooper,  one  of  the  plaintiffs,  an  assignment 
of  all  his  interest  in  the  said  premises  and  the  said  lease  or  agree- 
ment, iu  trust,  for  certain  purposes  in  the  said  deed  of  assignment 
specified ;  that  Cooper  caused  to  be  served  on  Gideon  H.  Wells, 
Charles  M.  Wells,  and  Lewis  Wain,  notices  of  taking  an  appraise- 
ment and  valuation  of  said  property  on  the  31st  day  of  March, 


APRIL  TERM,  1830.  13 

Copper  et  al.  v.  Wells  et  al. 

1829,  and  of  his  intention  to  deliver  up  on  that  day  the  possession 
of  the  same;  that  Cooper  attended,  but  Wells  declined  making 
any  appointment,  and  caused  the  said  buildings  to  be  locked  up; 
that  he  also  declines  receiving  possession  ;  that  the  rent  then  due 
was  $226.37^,  which  Cooper  offered  to  deduct  out  of  the  valua- 
tion, which  was  also  refused ;  that  the  said  Hoy  is  in  possession 
at  sufferance  under  the  said  Gideon  H.  Wells,  and  colludes  with 
him  to  defeat  the  rights  of  the  complainants. 

It  is  further  shown,  that  Hannah  the  wife  of  Gideon  H.  Wells, 
died  in  1824,  leaving  five  children,  her  heirs  at  law,  being  also 
children  of  Gideon  H.  Wells;  and  also  a  last  will  and  testament, 
or  an  appointment  in  the  nature  thereof;  and  that  by  virtue  of  a 
conveyance  from  Wells  and  wife,  subsequent  to  the  said  agreement, 
and  of  divers  other  conveyances  subsequent  thereto,  the  legal  estate 
in  said  premises  is  now  vested  in  the  said  Lewis  Wain  and  Charles 
M.  Wells,  in  fee  simple,  subject  to  certain  trusts  and  conditions  in 
the  said  conveyances  specified. 

The  relief  prayed,  is,  that  the  said  Gideon  H.  Wells  and  the  as- 
signees and  representatives  of  Hannah  Wells,  may  specifically 
perform  theconvenants  and  stipulations  contained  in  the  said  lease 
or  agreement,  and  that  the  valuation  made  by  the  said  Woods  may 
be  confirmed  ;  or  that  an  estimate  of  the  amount  and  value  of  the 
buildings  and  machinery  be  made  by  a  master,  or  under  his  direc- 
tion, and  that  the  amount  of  such  appraisement  be  decreed  to  be  a 
lien  upon  the  said  premises ;  that  the  defendants  be  decreed  to  pay 
the  same  by  some  short  day,  or  in  default  thereof  that  the  same  be 
sold  ;  that  the  proceeds  be  Appropriated  to  the  satisfaction  of  the 
said  mortgage  debt  to  O.Ioraith,  and  the  residue  to  the  said  James 
C.  Cooper. 

To  this  bill  the  defendants,  with  the  exception  of  James  Hoy, 
have  demurred,  as  well  for  want  of  equity,  as  because  the  said  ex- 
ecutors of  Calbraith  have  no  lawful  right  to  sue.  This  cause  was 
submitted  to  the  court  upon  the  pleadings,  in  the  term  of  January 
last. 

G.  Wood,  for  the  complainants. 
G.  D.  Wall,  for  the  defendants. 


14  CASES  IN  CHANCERY. 

Copper  et  al.  v.  Wells  et  al. 

THE  CHANCELLOR.  Have  the  complainants  exhibited  a  pro- 
per case  for  equitable  relief? 

The  complainants  represent  those  who  made  the  original 
agreement  with  Wells  and  wife,  in  1814.  It  is  manifest  that  on 
the  strength  of  that  agreement,  expensive  buildings  were  con- 
structed, and  large  sums  of  money  expended  in  purchasing  ma- 
chinery necessary  for  the  manufacturing  business.  The  fifteen 
years  mentioned  in  the  contract  ended  on  the  30th  of  March,  1829; 
the  lease  then  expired  by  its  own  limitation,  unless  the  lessee  re- 
quested a  continuance.  In  this  case  such  request  was  not  made ; 
on  the  contrary,  the  party  then  in  interest  and  representing  the 
original  lessees,  gave  notice  to  those  having  the  legal  estate,  that 
the  possession  would  be  given  up,  and  that  a  valuation  was  desir- 
ed, of  the  building  and  machinery ;  the  complainant  having 
chosen  one  appraiser,  according  to  the  stipulation  in  the  lease. 
The  defendants  refused  to  receive  the  possession,  or  to  unite  in 
the  appraisement.  The  rent  (with  the  exception  of  a  small  part 
of  it)  was  paid  ;  and  it  was  offered  that  this  should  be  allowed  out 
of  the  valuation. 

As  to  the  first  species  of  relief  prayed  for :  can  the  court  decree 
a  specific  performance  ?  Clearly  not.  The  principle  is  well  settled 
that  the  court  has  no  power  to  compel  a  party  to  appoint  an  arbi- 
trator, and  of  course  that  a  specific  performance  cannot  be  decreed. 
In  Mitchell  v.  Harris,  2  Ves.  jr.  129,  Lord  Eldon  inquired  whe- 
ther there  was  any  instance  of  a  bill  to  compel  parties  to  name  ar- 
bitrators; and  in  Street  v.  JRigby,  6  Ves.  jr.  818,  the  same  chan- 
cellor remarks,  "  There  is  considerable  weight  as  evidence  of  what 
the  law  is,  in  the  circumstance  that  no  instance  is  to  be  found  of 
a  decree  for  specific  performance  to  name  arbitrators,  or  that  any 
discussion  upon  it  has  taken  place,  in  experience,  for  the  last  twen- 
ty-five years."  The  same  principle  is  recognized  in  Nichols  v. 
Chalie,  14  Ves.  jr.  270;  Waters  v.  Taylor,  15  Ves.  jr.  10;  Wilkes 
v.  Davis,  3  Meriv.  509  ;  and  has  been  recently  confirmed  by  this 
court  in  the  late  case  of  Newbold  and  others  v.  Pearson. 

It  appears  however,  that  the  complainant  had  a  valuation  made 
of  the  buildings  and  machinery  by  one  Woods,  after  a  notice  given 
to  the  other  party  to  choose  an  appraiser.  The  property  was  ap- 
praised at  $14,337.45,  and  the  bill  seeks  to  have  this  appraisement 
confirmed.  It  is  manifest  that  this  appraisement  was  not  made 


APRIL  TERM,  1830.  15 

Copper  et  al.  v.  Wells  et  al. 

in  the  manner  prescribed  by  the  article  of  agreement.  It  is  an 
ex  parte  proceeding,  altogether  irregular  and  void,  and  can  fur- 
nish no  ground  for  a  decree  of  this  court.  The  court  can  afford 
no  aid  in  that  way. 

Is  then  the  complainant,  Copper,  without  a  remedy  ?  Shall  a  re- 
fusal on  the 'part  of  the  defendants  to  comply  with  the  agreement, 
and  name  an  arbitrator  to  adjust  and  settle  the  amount  justly  due 
for  the  improvements  and  property  of  the  complainant,  have  the  ef- 
fect of  securing  to  him  the  benefit  of  such  property,  and  leaving  the 
complainant  without  redress?  Such  cannot  be  the  law.  Upon 
broad  principles  of  justice,  Copper,  as  the  representative  of  Haver- 
stick,  is  entitled  to  a  remuneration  commensurate  with  the  value 
of  the  improvements,  subject  to  the  mortgage  incumbrauce.  It 
cannot  be  pretended  that  Wells  can  compel  Copper,  the  complai- 
nant, to  extend  the  lease  against  his  will,  much  less  that  he  has  a 
right  to  the  building  and  machinery  without  making  satisfaction. 

If  the  complainant  has  a  remedy,  is  it  in  this  court? 

It  sometimes  happens  in  cases  of  contracts,  which  from  their 
nature  and  on  general  principles  may  be  decreed  to  be  specifically 
performed,  that  owing  to  some  circumstances  such  performance 
has  become  impossible;  as  where  after  a  contract  for  the  sale  and 
purchase  of  land,  the  vender  sells  the  property  to  a  bona  fide  pur- 
chaser, without  notice,  and  for  a  valuable  consideration,  a  spe- 
cific performance  will  not  be  decreed,  for  such  decree  would  be  nu- 
gatory. In  such  cases,  as  well  as  in  the  present,  when  from  the 
very  nature  of  the  contract,  a  specific  performance  cannot  be  de- 
creed, the  party  aggrieved  is  entitled  to  compensation  or  to  dam- 
ages for  the  non- performance  of  the  agreement,  either  in  a  court  of 
law  or  of  equity.  •  Which  is  the  proper  tribunal,  is  a  fair  question 
for  consideration. 

It  is  true,  in  general,  that  a  party  whose  rights  have  been  injur- 
ed by  the  non-performance  of  a  lawful  contract,  has  an  ample  reme- 
dy at  law,  and  must  seek  redress  in  the  common  law  courts.  The 
old  doctrine  was,  that  he  might  have  his  election  to  resort  either 
to  a  court  of  law  for  damages,  or  to  a  court  of  equity  for  a  specific 
performance.  And  Sir  William  Grant,  the  master  of  the  rolls, 
in  Greenaway  v.  Adams,  12  Ves.  jr.  401,  remarks,  that  if  a  court 
of  equity  does  not  see  fit  to  decree  a  specific  performance,  or  finds 
that  a  contract  cannot  be  specifically  performed  either  way,  he 


16  CASES  IN  CHANCERY. 

Copper  et  al.  v.  Wells  et  al. 

would  have  thought,  there  was  an  end  to  its  jurisdiction;  for  in 
the  one  case,  the  court  does  not  see  reason  to  exercise  the  jurisdic- 
tion, in  the  other  it  finds  no  room  for  its  exercise.  It  seems,  he 
adds,  that  the  consequence  ought  to  be  that  the  party  must  seek 
his  remedy  at  law.  It  is  equally  true,  however,  that  the  ancient 
landmarks  between  the  two  courts  have  been  in  this  parti- 
cular somewhat  shaken ;  and  the  result  has  been  favorable  to 
the  enlargement  of  the  jurisdiction  of  this  court. 

The  case  of  Denton  v.  Stewart,  decided  by  Lord  Kenyon,  mas- 
ter of  the  rolls,  in  1786,  1  Cox,  258,  is  a  leading  case  in  favor  of 
such  jurisdiction.  There  the  plaintiff  had  furnished  and  repaired  the 
house,  and  the  defendant  stated  in  his  answer,  that  he  had  actual- 
ly sold  the  house  to  another  person  for  a  full  valuable  considera- 
tion ;  it  was  referred  to  a  master  to  inquire  what  damages  the  plain- 
tiff had  sustained  by  the  defendant's  not  peforming  his  agreement, 
and  what  the  master  should  find  to  be  the  damage  in  such  respect, 
together  with  the  costs  of  suit,  should  be  paid  by  the  defendant  to 
the  plaintiff.  In  Greenaway  v.  Adams,  above  cited,  the  master 
of  the  rolls,  though  he  had  strong  doubts,  yielded  those  doubts  to 
the  authority  of  Lord  Kenyon,  and  made  precisely  the  same  decree. 

The  next  case  was  Gwillim  v.  Stone,  14  Ves.jr.  128.  The  bill 
prayed  that  a  contract  entered  into  by  the  plaintiff  for  a  purchase 
from  the  defendant  might  be  delivered  up,  on  the  ground  of  the  de- 
fective title  of  the  defendant;  and  that  compensation  might  be 
made  to  the  plaintiff,  for  the  loss  he  had  sustained  by  the  defen- 
dant's failure  to  carry  the  contract  into  execution.  The  master's 
report  was  against  the  title  of  the  defendant,  but  the  master  of  the 
rolls  declined  an  order  of  reference  to  a  master  to  inquire  as  to  the 
injury  sustained,  and  remarked  that  he  had  some  doubt  upon  the 
principle  laid  down  in  Denton  v.  Stewart.  In  Todd  v.  Grey 

17  Ves.jr.  274,  Lord  Eldon  held,  that  a  bill  for  a  specific  perform- 
ance, praying  in  the  alternative  an  issue  or  inquiry  with  a  view 
to  damages,  was  not  the  course  of  proceeding  in  equity,  except  in 
very  special  cases,  and   said  that  the  case  of  Denton  v.  Stewart 
could  not  be  supported  according  to  the  principles  of  the  court,  un- 
less it  was  on  this  distinction,  that  the  defendant  had,  pending  the 
suit,  put  it  out  of  his  power  to  perform  the  agreement.     In  a  late 
case,  Blore  v.  Sutton,  3  Meriv.  247,  the  competency  of  a  court 
of  equity  to  give  damages  for  the  non-performance  of  an  agree- 


APRIL  TERM,  1830.  17 

Copper  et  al.  v.  Wells  et  al. 

ment,  was  said  by  Lord  Eldon  to  have  been  questioned  by  very 
high  authorities,  notwithstanding  the  case  of  Denton  v.  Stewart. 
In  the  case  before  him  he  refused  a  decree  which  would  be  mere- 
ly for  damages,  and  not  a  compensation  for  the  benefit  the  estate 
had  received. 

The  case  of  Denton  v.  Stewart  has  been  recognized  in  this 
country  by  Chancellor  Kent  in  Phillips  v.  Thompson,  1  John. 
C.  R.  131.  The  bill. there  was  for  a  specific  performance.  This  relief 
was  denied,  because  the  contract  was  void  under  the  statute  of  frauds, 
but  the  complainant  having  sustained  damages  by  the  cutting  of  the 
canal  and  lowering  his  dam,  an  issue  of  quantum  damnificatus 
was  awarded ;  the  chancellor  remarking  he  was  apprehensive 
the  complainant  would  be  remediless  without  the  aid  of  the 
court.  And  in  Parkhurst  v.  Van  Cortlandt,  1  John.  C.  R.  274, 
the  court  ordered  a  reference  to  a  master.  In  that  case  the  plain- 
tiff" had  made  permanent  improvements  on  the  property,  and  the 
execution  of  the  contract  was  resisted  on  the  ground  of  its  being 
within  the  statute  of  frauds. 

In  Newbold  and  others  v.  Pearson,  in  this  court,  a  reference  was 
lately  ordered  where  permauent  improvements  had  been  made  and 
a  specific  performance  had  become  impossible. 

Taking  all  the  cases  together,  the  law  can  scarcely  be  consider- 
ed as  entirely  settled.  I  should  not  feel  willing  to  go  the  length 
of  saying  that  in  any  instance  a  party  might  file  a  bill  in  the  alter- 
native, praying  a  specific  execution  of  thp  contract,  and  if  that 
could  not  be  granted,  then  an  issue  or  inquiry  to  ascertain  the 
damages;  that  would  be  introducing  into  this  court  suits,  over 
the  subject  matter  of  which  the  courts  of  common  law  have  am- 
ple jurisdiction,  and  can  afford  ample  relief.  But  there  is  a  wide 
distinction  between  mere  damages  arising  from  the  non-per- 
formance of  a  contract,  which  damages  may  be  partly  imagin- 
ary and  partly  the  result  of  actual  or  supposed  inconvenience  or 
loss,  and  the  compensation  to  which  a  party  is  justly  entitled  for 
repairs  or  beneficial  and  lasting  improvements  made  to  property, 
under  the  faith  of  an  engagement,  which  is  afterwards  discovered 
to  be  defective  in  itself,  or  impossible  to  be  executed  by  the  default 
of  the  opposite  party.  In  the  one  case,  the  damages  can  be  pro- 
perly assessed  only  by  a  jury,  upon  an  issue  of  quantum  dam- 
nificatus; in  the  other,  the  compensation  may  be  safely  ascer~ 

B 


18  CASES  IN  CHANCERY. 

Copper  et  al.  v.  Wells  et  al. 

tained  by  an  inquiry  before  a  master  or  commissioners,  or  at  the 
discretion  of  the  court  an  issue  may  be  awarded.  In  cases  of  the 
latter  description  the  jurisdiction  of  this  court  is  complete.  The 
party  has  a  clear  equity  to  be  restored  to  the  money  paid  for  im- 
provements which  are  rendered  valueless  to  him,  but  greatly  ben- 
eficial to  the  owner  of  the  land.  It  was  so  held  by  the  lord  keeper 
in  Holl'is  v.  Edwards  &  al.  1  Ves.  169.  There  the  plaintiff,  in 
consequence  of  a  parol  agreement  for  the  execution  of  a  lease,  had 
expended  large  sums  on  the  premises.  The  statute  of  frauds 
was  pleaded,  and  successfully;  but  no  doubt  was  expressed  as  to 
the  right  of  recovering  in  this  court  the  money  expended  for  im- 
provements. This  case  does  not  appear  to  have  been  even  called 
in  question,  and  the  one  before  the  court  is  clearly  within  its  prin- 
ciples. 

If  I  had  doubts  as  to  the  plaintiff's  remedy,  I  should  be  inclined 
to  overcome  them  and  give  him  aid,  on  the  ground  that  he  can  only 
have  adequate  relief  in  this  gourt.  The  improvements  put  on  the 
premises  are  permanent  and  valuable,  and  it  is  right  that  they 
should  be  bound  for  the  reimbursement  of  the  complainant.  The 
claim  is  in  equity  a  lien  on  the  property,  and  unless  it  is  so  consi- 
dered the  complainant  may  be  without  remedy.  Before  a  judg- 
ment at  law  could  be  obtained,  such  might  be  the  situation  of  the 
property  and  parties,  as  that  the  judgment  would  be  altogether 
nugatory,  and  the  clear  right  of  the  complainant  defeated. 

The  second  ground  of  demurrer,  to  wit,  that  the  executors  of 
Calbraith  have  no  legal  right  to  come  into  this  court  to  sue  as  com- 
plainants, is  not  exactly  understood  by  the  court.  Standing  in 
place  of  their  testator,  they  have  an  interest  in  the  controversy. 
The  mortgage  of  the  testator  is  in  their  hands,  and  they  have  a 
right  to  be  satisfied  the  amount  of  it  out  of  the  property  bound  by 
it,  or  out  of  the  proceeds  of  said  property.  Where  the  letters  tes- 
tamentary were  issued,  does  not  appear  on  the  face  of  the  bill.  If 
it  shall  turn  out  that  they  were  granted  without  the  state,  the  ob- 
jection may  be  taken  at  another  stage  of  the  cause. 

Let  the  demurrer  be  overruled  with  costs. 

CITED  in  Berry  v.  Van  Winkle's  Ex'r,  1  Gr.  Ch.  276;  C&nover  v.  Smith,  2  Or. 
Ch.  54-58. 


APRIL  TERM,  1830.  19 

Case  of  Covenhoven. 
IN  THE  CASE  OF  PETER  COVENHOVEN,  A  LUNATIC. 

On  an  inquisition  returned  finding  a  person  lunatic  and  of  unsound  mind  at  that 
time,  and  for  five  years  last  past,  a  third  person  representing  himself  to  be 
the  attorney  in  fact  of  the  alleged  lunatic,  under  a  letter  of  attorney  executed 
within  that  period,  and  staling  that  he  had  transacted  business  of  the  alleged 
lunatic  to  a  considerable  amount,  and  advertised  and  sold  part  of  his  real 
estate,  the  alleged  lunatic  himself  having  executed  and  delivered  the  deeds 
therefor ;  and  that,  by  the  finding  of  the  inquisition,  he,  the  attorney,  is 
endangered  in  the  contracts  entered  into  by  virtue  of  said  letter  of  attorney — 
cannot  be  heard  upon  petition  by  him  praying  that  the  inquisition  may  be 
quashed,  or  a  new  commission  issued,  or  a  traverse  ordered ;  .he  is  not  inter- 
ested as  a  purchaser  whose  title  might  be  affected  by  the  inquisition,  neither 
is  he  liable  as  vendor,  the  lunatic  himself  having  executed  the  deeds ;  he 
has  no  interest  which  entitles  him  to  be  heard. 

A  stranger  cannot  sue  out  a  commission  in  the  nature  of  a  writ  de  lunatico 
inquirendo,  nor  can  he  make  himself  party  to  it  by  application  to  this  court; 
he  has  no  right  to  interfere  in  a  proceeding  of  this  nature.  The  party  who 
seeks  to  quash  the  inquisition  or  traverse  the  finding  of  the  jury,  should  have 
an  actual  interest,  legal  or  equitable,  which  would  be  endangered  by  the  find- 
ing of  the  jury,  and  that  should  be  manifested  to  the  court;  in  such  cases  the 
application  will  be  granted. 

A  person  found  lunatic  may  appear  and  traverse  the  inquisition  by  attorney,  but 
an  idiot  must  appear  before  the  court  in  person. 

The  petition  for  a  commission  of  lunacy  should  be  accompanied  by  affidavits, 
evincing  the  lunacy  of  the  party;  this  may  be,  by  setting  forth  the  unsound 
state  of  the  mind  of  the  person  against  whom  the  commission  is  prayed,  and 
mentioning  such  instances  of  incoherent  conduct  or  expression,  as  prove  him 
unfit  to  continue  in  the  management  of  his  own  affairs;  scan  affidavit  setting 
forth  no  particular  act  or  expression  of  the  alleged  lunatic,  from  which 
the  court  could  form  an  opinion  of  the  propriety  of  granting  the  commission, 
but  stating  expressly,  that  for  the  space  of  six  or  seven  years  last  past,  the  de- 
ponent has,  by  frequently  observing  the  behavior  and  actions  of  the  alleged 
lunatic,  looked  upon  him  to  be  deprived  of  his  reason  and  understanding,  so 
as  to  be  incapable  of  ihe  government  of  himself,  and  incompetent  to  manage 
his  own  affairs ;  is  sufficient,  after  inquisition  returned,  to  sustain  it  as  regu- 
larly issued. 

It  is  not  necessary  that  the  inquest  should  be  held  at  the  dwelling  house  of  the 
lunatic ;  if  held  at  a  suitable  pi  ice  in  the  neighborhood,  not  so  remote  as  to 
induce  the  suspicion  of  unfair  practice,  or  to  preclude  the  jury  from  inspect- 
ing the  lunatic,  it  is  sufficient:  in  this  case  the  inquisition  wag  held  at  a 
public  house  seven  miles  distant,  and  the  jury  and  two  of  the  commissioners 
went  to  the  dwelling  house  of  the  lunatic  and  inspected  him,  and  it  was  con- 
sidered to  be  within  the  rule. 

It  is  not  necessary  that  the  evidence  taken  before  the  jury  should  be  reduced  to 
writing  and  returned  with  the  inquisition. 


20  CASES  IN  CHANCERY. 

Case  of  Covenhoven. 

Where  the  lunacy  at  the  time  of  the  inquisition  found  is  not  questioned,  but  a 
traverse  is  sought  to  vary  the  time  at  which  the  lunacy  commenced,  to  ex- 
empt from  its  operation  a  will  executed  by  the  lunatic  within  the  period  of 
the  lunacy,  with  respect  to  which  the  inquisition  is  not  conclusive,  it  will  not 
be  granted. 

On  the  16th  of  February,  1830,  a  commission  in  the  nature 
of  a  writ  de  lunatico  inquirendo,  issued  out  of  this  court,  directed 
to  Robert  McChesney,  George  Davis,  and  George  Morris,  esquires, 
directing  them  to  inquire  into  the  alleged  lunacy  of  Peter  Coven- 
hoven. On  the  4th  of  March  the  commission  was  executed,  and 
the  jury  found  that  the  said  Peter  Covenhoveu  was,  at  the  time  of 
taking  the  inquisition,  a  lunatic  and  of  unsound  mind,  and  that 
he  had  been  in  the  same  state  of  lunacy  for  the  space  of  five  years 
then  last  past. 

On  the  9th  of  March,  Peter  Covenhoven,  the  alleged  lunatic, 
filed  in  this  court  a  petition,  setting  forth  that  the  inquisition  was 
taken  at  least  seven  miles  from  his  residence,  that  the  jurors  found 
against  the  weight  of  evidence,  and  that  he  had  been  informed 
that  the  proceedings  were  subject  to  several  objections.  The  pe- 
tition prayed  that  a  new  commission  might  issue,  or  that  he  might 
be  allowed  to  traverse  the  inquisition  already  found. 

On  the  same  day  "Peter  Gulick  filed  his  petition,  setting  forth 
that  on  the  9th  of  May,  1825,  the  alleged  lunatic,  Peter  Covenhoven, 
constituted  him  his  attorney  in  fact;  that  he  has  since  that  time 
transacted  all  his  business,  made  his  contracts,  and  sold  a  part  of  his 
real  estate;  that  by  reason  of  the  finding  of  the  jury  he  is  greatly 
endangered  in  the  matters  transacted  by  him  under  the  said  letter 
of  attorney ;  that  the  commission  was  executed  seven  miles  from 
the  residence  of  the  said  Peter  Covenhoven,  and  that  the  precept 
to  summon  the  jury  was  executed  by  one  James  Mount,  and  not 
by  the  sheriff  of  the  county ;  that  proper  and  competent  evidence 
was  overruled  or  improper  evidence  received  by  the  commissioners  ; 
that  the  inquisition  is  against  the  opinion  of  eight  of  the  jurors, 
and  against  the  weight  of  evidence.  This  petition  prays  that  the 
inquisition  may  be  quashed,  or  that  a  new  commission  may  issue, 
or  a  traverse  be  ordered. 

This  case  was  submitted  to  the  court  in  April  term  last. 

J.  S.  Green,  for  the  petitioners. 

G.  Wood,  contra,  for  confirming  the  inquisition. 


APRIL  TERM,  1830.  21 


Case  of  Covenhoven. 


THE  CHANCELLOR.  The  first  question  which  presents  itself, 
is,  whether  the  petitioners  have  a  right  to  come  before  the  court  and 
ask  relief,  and  if  they  have,  whether  they  are  properly  before  the 
court.  And  first  as  it  regards  the  application  of  Peter  Gulick.  His 
claims  to  be  heard  in  this  matter  are,  that  he  is  the  agent  and  at- 
torney in  fact  of  Peter  Covenhoven,  and  has  acted  as  such  from 
the  9th  day  of  May,  1825,  under  a  regular  letter  of  attorney  of 
that  date ;  that  he  has  transacted  the  business  of  the  said  Peter 
Covenhoven  to  a  considerable  amount,  and  has  advertised  and  sold 
a  part  of  the  lands — he,  the  said  Peter  Covenhoven,  executing  the 
deeds  therefor;  that  by  the  finding  of  the  inquisition,  that  the  said 
Peter  Covenhoven  was  a  lunatic  of  a  period  prior  to  the  date  of 
the  letter  of  attorney,  he  is  greatly  endangered  in  the  several  tran- 
sactions, contracts  and  agreements,  made  and  entered  into  by  vir- 
tue of  the  said  letter  of  attorney. 

It  is  clear  that  a  stranger  has  no  right  to  interfere  in  a  proceed- 
ing of  this  nature.  He  can  neither  sue  out  a  commission,  nor 
can  he  make  himself  a  party  to  it  by  any  application  he  may 
make  to  this  court.  I  take  it  to  be  equally  clear,  that  when  a  per- 
son has  actual  interests  either  equitable  or  legal,  which  are  affected 
by  the  inquisition,  he  may  apply  to  this  court  for  relief.  In 
England,  this  right  is  generally  considered  to  be  founded  on  the 
statute  of  2d  Edw.  6,  c.  8,  which  provides,  that  if  any  are  untruly 
found  lunatic  or  idiot,  any  person  or  persons  grieved  by  any 
such  office  or  inquisition,  shall  or  may  havft  his  or  their  traverse  to 
the  same,  &c.  That  statute  has  never  been  re-enacted  in  this 
state,  and  I  am  not  aware  that  it  was  in  use  in  the  colony  previous 
to  the  revolution,  so  as  to  be  considered  part  of  the  law  in  force  at 
the  time  of  adopting  the  constitution  :  nor  do  I  consider  it  material ; 
the  right  may  exist  independent  of  any  statute.  Proceedings  upon 
an  inquisition  of  lunacy  are  ex  parte;  and  although  they  are  not 
conclusive  as  to  the  rights  of  third  persons,  yet,  \yhen  those  rights 
are  affected  by  the  inquisition,  it  is  equitable  and  just  that  the  party 
aggrieved  should  have  an  opportunity  of  being  heard  in  such  mode 
as  may  best  comport  with  justice  and  the  rights  of  all  interested. 
It  may  be  of  the  utmost  importance  to  alienees  and  others  holding 
interests  under  a  person  who  is  found  to  be  a  lunatic,  to  have  the 
question  definitely  and  speedily  settled.  The  inquisition  is  always 
prima  facie  evidence,  and  it  would  be  inconvenient  and  unjust 


22  CASES  IN  CHANCERY. 

Case  of  Covenhoven. 

that  those  whose  fortunes  might  depend  on  the  issue  of  a  full  in- 
vestigation, should  be  compelled  to  wait  in  uncertainty,  with  a  cloud 
.hanging  over  them, -until  the  death  of  witnesses  and  the  loss  of 
testimony  rendered  defence  hopeless.  But  the  party  who  seeks  to 
quash  the  inquisition,  or  traverse  the  finding  of  the  jury,  should 
have  an  actual  interest,  either  legal  or  equitable,  and  that  should 
be  manifested  to  the  court.  What  in  this  case  is  the  interest  of 
this  petitioner?  He  has  acted  as  the  agent  of  Peter  Covenhoven, 
under  a  power  of  attorney,  and  as  such  agent  has  transacted  busi- 
ness to  considerable  amount.  In  what  situation  that  business  is  at 
this  time,  does  not  appear.  It  is  not  stated  that  any  settlements 
have  taken  place  between  the  petitioner  and  the  alleged  lunatic 
which  will  be  invalidated,  or  that  in  consequence  of  such  settle- 
ments, vouchers  have  been  destroyed  or  cancelled,  so  as  to  render  it 
impracticable  for  this  agent  to  account  with  any  one  save  the 
alleged  lunatic  himself.  If  the  accounts  of  this  agency  are  still 
unsettled,  there  is  no  reason  shown  or  assigned,  why  such  accounts 
may  not  be  as  fairly  and  equitably  adjusted  with  a  committee  or 
guardian  as  with  Peter  Covenhoven.  I  do  not  see  that  the  fact  of 
Gulick  having  transacted  business  for  Peter  Covenhoven  to  a  con- 
siderable amount,  even  under  a  power  of  attorney,  which,  according 
to  the  finding  of  the  jury,  was  executed  after  Covenhoven  became 
of  unsound  mind,  can  of  itself  create  such  an  interest  as  to  au- 
thorize an  interference  on  his  part.  But  again,  he  states  that  he 
has  advertised  and  sold  part  of  the  lands  of  Peter  Covenhoven  to 
different  persons,  he,  the  said  Pe.ter  Covenhoven,  having  executed 
Xhe  deeds  therefor.  If  the  purchasers  were  before  the  court  on  peti- 
tion to  be  heard,  alleging  that  their  possessions  and  titles  were  jeo- 
parded by  this  ex  parte  inquisition,  it  would  present  a  very  different 
case,  and  might  be  a  proper  one  for  relief.  But  Gulick  is  not  a 
purchaser.  Is  he  the  vendor?  He  advertised  and  sold  ;  but  on  his 
own  showing  it  appears  that  the  purchasers  were  willing  to  take  the 
deeds  from  Peter  Covenhoven  himself.  They  trusted  to  his  per- 
sonal covenants  and  warranty,  and  so  far  from  being  dissatisfied 
with  the  proceedings  lately  had,  they  have  caused  to  be  presented 
to  the  court,  rather  informally  it  is  true,  a  written  request  that  the 
inquisition  might  not  be  disturbed  on  the  ground  of  their  purchase. 
How  then  Gulick  is  to  be  endangered,  as  he  alleges,  in  the  several 
transactions,  contracts  and  agreements  made  and  entered  into  by 


APRIL  TERM,  1830.  23 


Case  of  Covenhoven. 


virtue  of  the  said  letter  of  attorney,  is  not  perceived  by  the 
court. 

In  the  case  ex  parte  Roberts,  3  Atk.  5  and  308,  it  is  laid 
down  by  Lord  Hardwicke,  that  the  alienee  of  the  lunatic  may  tra- 
verse the  inquisition,  but  he  shall  be  bound  by  the  traverse.  In 
ex  parte  Morley,  Lord  Rosslyn  held  the  same  doctrine;  and  in 
ex  parte  Hale,  7  Ves.jr.  261,  Lord  Eldon  held  that  a  bonafide 
owner  iii  equity  of  two  advowsous  under  contract  might  traverse  an 
inquisition,  finding  that  the  party  with  whom  he  contracted  had 
been  a  lunatic  ten  years  before.  In  ex  parte  Ward,  6  Ves.  579, 
the  same  chancellor  being  asked  to  dismiss  an  application  to  tra- 
verse an  inquisition  on  the  ground  that  it  was  made  by  an  entire 
stranger  without  any  interest,  rather  declined  expressing  any  posi- 
tive opinion  ;  but  admitted  that  such  a  case  was  not  within  his  re- 
collection. On  the  other  hand,  Lord  Thurlovv,  in  the  matter 
of  Fust,  2  Cox,  418,  denied  a  traverse  to  the  husband  of  the  alleg- 
ed lunatic,  there  being  circumstances  connected  with  the  case  that 
rendered  the  validity  of  the  marriage  doubtful.  It  was  well  re- 
marked by  the  court  in  that  case,  that  great  care  should  be  taken 
that  the  general  object  of  the  proceedings  under  a  commission 
should  not  be  disappointed  by  such  application.  Taking  all  the 
cases  together,  it  is  fairly  to  be  inferred,  as  I  think,  that  applica- 
tions on  the  part  of  third  persons  in  matters  of  this  nature  are  not 
encouraged,  yet  that  they  will  be  listened  to  and  granted  when  ac- 
tual bonafide  interests  and  rights  are  endangered.  Considering  as 
I  do,  that  Peter  Gulick  has  not  placed  himself  in  this  situation  be- 
fore the  court,  his  petition  must  be  dismissed  ;  and  in  making  this 
order,  it  is  a  matter  of  satisfaction  to  know,  that  if  I  should  have 
mistaken  the  law  upon  the  subject,  the  rights  of  the  petitioner  are 
not  concluded,  and  also,  that  as  to  him  the  inquisition  was  not  in 
fact  an  ex  parte  proceeding,  but  that  he  attended  before  the  jury 
and  there  had  the  benefit  of  witnesses  and  counsel. 

To  the  petition  presented  by  Peter  Covenhoven,  the  alleged  lu- 
natic, it  is  objected  that  he  cannot  appear  by  attorney,  but  must 
appear  in  his  own  proper  person  before  the  court,  so  that  the  court 
may  judge  whether  he  is  able  to  present  a  petition.  This  objec- 
tion appears  to  me  not  well  taken.  In  ex  parte  Roberts,  3  Atk.  5, 
Smithie's  case  in  1728  is  referred  to ;  it  was  a  motion  for  leave  to 
traverse  by  attorney,  and  was  opposed  on  the  ground  that  the  tra- 


24  CASES  IN  CHANCERY. 


Case  of  Covenhoven. 


verse  must  be  hi  propria  persona :  on  searching  precedents  many  cases 
were  found  where  a  lunatic  had  so  traversed,  but  none  in  which  the 
same  privilege  had  been  accorded  to  an  idiot ;  and  that  being  the  case 
of  an  idiot,  it  was  accordingly  ordered  that  she  appear  in  person. 
In  ex  parte  Cragg,  and  ex  parte  Feme,  5Ves.  jr.  the  wife  who  had 
been  found  a  lunatic,  joined  with  her  Imsband  in  a  petition  for  a 
traverse  of  the  inquisition,  and  it  was  granted  as  being  matter  of 
right  under  the  statute  of  Edward.  In  WindeWs  case,  1  John. 
C.  R.  600,  a  traverse  was  ordered  on  the  petition  of  the  lunatic, 
without  his  being  brought  into  court  for  inspection.  In  1  Collin- 
son  on  idiots,  171 — 2,  the  English  cases  are  all  collected,  and  the 
result  of  them  is,  that  an  idiot  must  appear  in  person,  but  a  lunatic 
may  appear  by  attorney.  The  reason  of  the  distinction,  as  given 
by  Collinson  is,  that  it  was  supposed  idiocy  might  be  discerned. 
I  can  see  no  use  or  propriety  in  bringing  the  lunatic  before  the 
court  at  this  stage  of  the  proceedings,  merely  to  judge  of  his  capa- 
city to  present  a  petition.  No  other  end  could  be  answered  by  it; 
for  if  upon  such  inspection  the  court  should  suppose  there  was  no 
foundation  for  the  finding,  it  would  have  no  power  to  set  it  aside. 
The  testimony  of  respectable  persons,  who  have  long  known  the 
lunatic,  and  been  in  the  habit  of  noticing  the  movements  of 
his  mind,  or  of  physicians  who  have  been  accustomed  to  watch 
the  symptoms  of  the  most  distressing  of  all  human  maladies,  can 
scarcely  fail  to  be  more  satisfactory  than  an  inspection  by  the 
court.  Considering  then  the  application  properly  before  the  court, 
let  us  inquire  into  the  ground  of  the  complaint.  And  first,  the 
petitioner  seeks  to  quash  the  inquisition  on  the  ground  of  irregu- 
larity. 

He  contends  that  the  affidavits  on  which  the  commission  issued 
are  insufficient,  and  not  within  the  rule  of  the  court.  The  gen- 
eral rule  on  this  subject  is,  that  the  petition  should  be  accompanied 
by  affidavits  setting  forth  the  unsound  state  of  mind  of  the  per- 
son against  whom  the  commission  is  desired,  and  mentioning 
such  instances  of  incoherent  conduct  or  expression  as  prove  him 
unfit  to  continue  in  the  management  of  his  affairs,  2  Collins.  151. 
In  2  Madd.  Chy.  569,  it  is  said  the  petition  must  be  accompa- 
nied by  affidavits  evincing  the  lunacy  of  the  party ;  and  this  is 
the  language  of  our  rule  of  1817.  The  court  ought,  in  all  cases, 
to  be  satisfied  of  the  propriety  of  granting  the  commission;  and  to 


APRIL  TERM,  1830.  25 


Case  of  Covenhoven. 


be  satisfied,  too,  in  the  mode  prescribed  by  its  own  rule.  One  of  the 
affidavits  in  the  present  case  does  not,  perhaps,  come  quite  up  to  the 
letter  of  the  rule.  It  sets  forth  no  particular  act  or  expression  of  the 
alleged  lunatic,  from  which  the  court  might  be  enabled  to  form  some 
>piniou  of  the  propriety  of  granting  the  application  ;  but  the  depo- 
nent swears  expressly,  that  for  the  space  of  six  or  seven  years  last 
past,  he  has,  by  frequently  observing  the  behavior,  words  and  ac- 
tions, of  the  said  Peter  Covenhoven,  looked  upon  him  to  be  deprived 
of  his  reason  and  understanding,  so  as  to  be  incapable  of  the  govern- 
ment of  himself,  and  incompetent  to  manage  his  affairs.  The  prac- 
tice under  our  rule  has  not  been  uniform.  Some  have  considered 
that  the  affidavits,  in  order  to  evince  the  lunacy  of  the  party,  should 
set  forth  particular  instances  of  incoherent  conduct  or  expressions  ; 
while  others  have  deemed  it  an  unnecessary  formality.  No  evil  has 
ever  resulted  from  this  laxity  of  construction.  I  incline  to  think  the 
affidavits  are  sufficient,  as  being  within  the  spirit  of  the  rule,  and  ac- 
cording to  the  general  practice  of  the  court ;  and  if  they  were  not,  I 
should  feel  unwilling  at  this  stage  of  the  proceedings  to  quash  an  in- 
quisition by  which  the  affidavits  themselves  are  entirely  confirmed. 
Again,  it  is  contended,  that  the  inquest  should  have  been  held 
at  the  house  of  the  lunatic.  It  appears  that  it  was  held  at  a  pub- 
lic house  about  seven  miles  distant,  and  that  the  jury  and  two  of 
the  commissioners  went  to  the  house  of  the  lunatic,  and  there  in- 
spected him.  The  cases  adduced  in  favor  of  this  proposition  do 
not  support  it :  it  is  not  the  practice,  neither  is  it  the  law.  A  com- 
mission may  issue  against  a  person  who  is  abroad  and  beyond 
seas :  Ex  parte  Southcot,  2  Ves.  sen.  401 :  but  it  must  be  exe- 
cuted in  the  place  where  he  formerly  resided.  In  that  case  Lord 
Hardwick  is  not  understood  by  the  court  as  saying,  that  the  com- 
mission must  be  executed  at  the  mansion  house ;  but  that  the 
mansion  house  shall  determine  the  place  of  residence,  and  wher- 
ever the  residence  is,  in  that  county  the  commission  must  be  exe- 
cuted. So  he  was  understood  by  Lord  Eldon  in  Baker's  case, 
19  Ves.  340;  (better  reported  in  Coop.  205.)  He  notices  with 
approbation  the  dictum  of  Lord  Hardwick;  but  instead  of  order- 
ing the  commission  in  that  case  to  be  executed  at  the  mansion 
house  of  the  lunatic,  the  order  was  that  it  should  be  executed  in 
Devonshire,  which  was  the  county  where  the  mansion  house  was 
situated.  In  2  Collins,  on  idiots  and  lunatics.  163,  there  is  the 


26  CASES  IN  CHANCERY. 

Case  of  Covenhoven. 

form  of  a  precept  to  the  sheriff  to  summon  a  jury  to  come  before 
the  commissioners  to  inquire  of  the  lunacy  of  A.  B.  The  sheriff 
is  directed  to  convene  the  jury  at  the  house  of  Martha  Bristou,  si- 
tuated at  Hackney,  in  the  parish  of  Hackney,  in  the  county  of 
Middlesex,  and  known  by  the  name  of  the  Mermaid  tavern;  to 
inquire  whether  A.  B.  residing  at  Whitniore  house,  in  the  parish  of 
Hackney,  in  the  county  of  Middlesex,  be  a  lunatic  or  not;  evi- 
dently showing  that  the  inquisition  was  not  taken  at  the  mansion 
house.  There  is  great  propriety  in  having  the  commission  execu- 
ted near  the  place  of  actual  residence.  The  jury  and  commission- 
ers should  have  it  in  their  power  to  inspect  the  lunatic  if  they 
should  see  fit  to  require  it,  and  the  rights  of  all  parties  are  better 
subserved  by  an  investigation  in  the  neighborhood  than  elsewhere; 
but  there  is  no  necessity  that  the  inquest  should  be  held  at  the 
dwelling  house  of  the  lunatic.  It  may  ofttimes  be  inconvenient, 
and  sometimes  improper.  If  it  is  held  at  a  suitable  place,  not  so 
remote  as  to  induce  the  suspicion  of  unfair  practice,  or  to  preclude 
the  jury  from  an  inspection  of  the  lunatic,  it  is  sufficient.  The 
case  now  before  the  court  is  within  this  rule,  and  the  objection  taken 
on  this  ground  cannot  be  supported.  Nor  is  there  any  thing  in  the 
ground  taken  by  the  counsel  of  the  lunatic,  that  the  evidence 
before  the  jury  was  not  reduced  to  writing  and  returned  with  the 
inquisition.  The  practice  as  well  in  England  as  in  this  country  is 
different,  and  I  do  not  know  of  any  instance  where  it  has  been  done. 
On  a  careful  consideration  of  all  the  reasons  assigned  for  quashing 
the  proceedings,  I  am  of  opinion  that  they  are  not  sufficient,  and 
that  the  prayer  of  the  petitioner  in  that  behalf  cannot  be  granted. 

The  only  question  that  remains  is,  whether  Peter  Covenhoven, 
the  alleged  lunatic,  shall  be  allowed  to  traverse  the  inquisition. 
This  must  depend  on  the  sound  discretion  of  the  court,  under  all 
the  circumstances. 

It  is  not  pretended  by  any  one  that  Peter  Covenhoven  was  not  at 
the  time  of  taking  the  inquisition  of  unsound«mind,  and  incompe- 
tent to  the  management  of  himself  and  property.  The  petitioner 
himself  does  not  allege  it;  nothing  of  the  kind  is  hinted  at  in  the 
depositions  of  Mr.  Alexander  or  Mr.  Morford.  The  difficulty  ap- 
pears to  be  this,  that  in  the  month  of  August,  1825,  Peter  Covenho- 
ven executed  a  last  will  and  testament ;  whereas  by  the  inquisition* 
it  is  found  that  as  early  as  March,  1825,  he  was  of  unsound  mind  ; 


APRIL  TERM,  1830.  27 

and  the  object  is  to  get  rid  of  that  part  of  the  finding  which  might 
have  a  tendency  to  invalidate  the  will.  Alexander  and  Morford 
both  state  that  they  were  subscribing  witnesses  to  the  will ;  and  Mr. 
Alexander  testifies,  that  at  that  time  he  did  not  consider  him  a  luna- 
tic. Mr.  Morford  states,  that  he  considered  him  of  "  good  and  dis- 
posing mind  and  memory  :"  and  under  those  impressions  they  at- 
tested the  will.  If  evidence  had  been  adduced  before  the  court,  to 
raise  a  reasonable  doubt  of  the  man's  being  a  lunatic  at  the  time  of 
the  inquisition  taken,  I  should  feel  willing  to  order  a  traverse.  No 
man  should  be  deprived  of  his  liberty  and  property  upon  the  ground 
of  incapacity  to  manage  his  concerns,  until  the  fact  is  established  to 
the  satisfaction  of  every  intelligent  mind.  But,  the  only  effect  of  a 
traverse  in  this  case,  would  be  a  contestation  about  the  period  when 
the  lunacy  or  unsoundness  of  mind  commenced.  And  the  question 
may  well  be  asked,  Cui  bono?  Would  it  restore  Peter  Covenhoven 
to  his  liberty  or  property  ?  Would  the  legatees  or  devisees  under  the 
will  be  bound  by  it,  if  the  second  finding  should  be  like  the  first?  If 
the  first  finding  should  be  set  aside  in  this  respect,  would  it  prevent 
the  necessity  of  proving  the  will,  and  thereby  avoid  litigation  at  that 
period,  whenever  it  may  happen  ?  If  either  of  these  results  would 
follow,  the  path  of  duty  would  be  plain,  and  the  court  would  take 
pleasure  in  pursuing  a  course  that  would  terminate  all  difficulties. 
As  it  is,  I  do  not  feel  myself  at  liberty  to  put  the  estate  of  the  lunatic 
to  the  expense  of  a  traverse,  which  can  be  of  no  benefit  to  the  luna- 
tic himself,  and  which  the  court  has  no  power  to  make  conclusive 
on  the  rights  of  others.  It  is  worthy  of,remark,  too,  that  all  the 
children  and  family  of  the  lunatic,  who  would  most  likely  be  inter- 
ested in  sustaining  the  will,  are  satisfied  with  the  inquisition.  If 
strangers  should  claim  under  the  will,  their  rights  are  not  concluded. 
The  inquisition  is  competent  evidence,  it  is  true ;  but  the  whole 
question  is  open  ;  and  when  it  shall  be  considered  that  the  jury 
have  gone  back  for  a  period  of  five  years  ;  that  some  of  them 
did  not  concur  in  the  finding,  and  that  the  persons  who  may 
then  claim-  had  no  opporl unity  of  being  present  at  the  taking  of 
the  inquisition,  and  having  no  existing  rights,  were  consequently 
not  entitled  to  a  traverse,  the  evidence  furnished  by  the  inquisition 
itself  will  have  but  little  weight  before  an  intelligent  tribunal. 
Let  the  inquisition  be  confirmed. 

CITED  in  Matter  of  Dey,  1  Slockl.  183;   Tauger  v.  Skinner,  1  McCar.  395  ;  Mat- 
ter of  Child,  1  C.  E.  Gr.  499. 


CASES    DECIDED 


OF   THE 

STATE    OF    NEW-JERSEY, 

JULY  TERM,  1830. 
CAMMANN  v.  EXECUTOR  OF  TRAPHAGANv 


On  a  bill  for  injunction  and  relief  against  a  verdict  and  judgment  at  law,  and 
plea  of  the  judgment  in  bar  supported  by  answer  ;  there  being  no  replication 
filed,  the  plea,  on  argument,  must  be  considered  true. 

As  to  all  matters  within  the  complainant's  knowledge  at  the  time  the  trial  took 
place,  defence  should  have  been  made  at  law,  and  a  plea  of  the  judgment  at 
law  is  a  good  defence  to  a  bill  in  this  court. 

The  absence  of  the  complainant  and  his  engagements  in  business,  not  having  been 
deemed  sufficient  ground  for  putting  off,  or  granting  a  new  trial,  the  decision, 
at  law  is  final. 

Matters  of  defence,  having  come  to  the  complainant's  knowledge  since  the  trial 
at  law,  are  proper  grounds  for  granting  an  injunction  and  requiring  discov- 
ery. 

But  these  matters,  charged  to  be  within  the  knowledge  of  the  defendant,  wko 
was  plaintiff  at  law,  being  denied  by  his  answer;  the  plea  of  the  judg- 
ment allowed,  with  costs. 


The  bill  set  forth,  that  Augustus  F.  Cammann,  the  complain- 
ant, and  Henry  Traphagan,  deceased,  had  dealings  together  ; 
that  several  promissory  notes  were  given  by  the  complainant  to 
the  deceased ;  upon  two  of  which  notes,  and  a  book  account,  the 
complainant  was  prosecuted  at  law  by  the  defendant,  David  P. 
Traphagan,  as  executor  of  the  said  deceased,  and  a  verdict  and 
judgment  obtained  against  the  complainant,  who  was  then  ab- 
sent on  business.  That  he  had,  as  he  alleges,  a  defence;  had 

28 


JULY  TERM,  1830.  29 

Cammann  v.  Executor  of'Traphagan. 

made  some  preparation  for  trial ;  and  that  owing  to  reasons  which 
are  set  forth  in  the  bill,  a  defence  was  not  made ;  that  afterwards 
a  rule  to  show  cause  was  obtained  and  argued,  and  a  new  trial  re- 
fused by  the  court;  that  upon  said  judgment  execution  issued, 
and  subsequently,  proceedings  were  commenced  against  his 
bail.  The  bill  sets  forth  some  matters  before  the  trial  at  law,  and 
charges  that  the  deceased  had  informed  the  defendant,  that  the  two 
notes  in  question  were  paid  and  settled  by  the  complainant,  or  in 
some  way  arranged  ;  and  that  since  the  trial  of  the  said  cause  the 
complainant  had  heard  that  such  matter  was  within  the  know- 
ledge of  the  defendant;  and  prays  for  discovery,  relief,  and  an  in- 
junction. 

The  defendant  pleads  in  bar  the  verdict,  judgment  and  proceed- 
ings at  law ;  and  avers  in  his  plea,  and  repeats  in  his  answer 
accompanying  his  plea,  that  he  had  no  knowledge  respecting  the 
said  notes  and  book  account,  or  of  the  dealings  and  transactions  be- 
tween the  complainant  and  the  testator  in  relation  thereto,  until 
after  the  death  of  the  testator,  and  he  became  the  executor  of  his 
last  will  and  testament,  And  he  denies  that  the  testator  ever  dis- 
closed to  him  that  the  said  demands  on  which  the  said  suit  at  law 
was  brought,  or  any  part  thereof,  were  paid  or  settled,  or  arranged 
in  any  way.  And  says  that  he  caused  said  suit  at  law  to  be 
commenced  and  prosecuted,  and  that  he  exhibited  his  evidence  in 
said  suit  before  the  jury,  and  obtained  the  said  verdict  and  judg- 
ment thereon,  merely  in  discharge  of  his  duty  as  such  executor, 
and  under  the  full  conviction  that  the  claim  aforesaid  was  just  and 
correct. 

The  plea  in  this  case  was  set  down  for  argument.  The  chan- 
cellor having  been  the  attorney  for  the  complainant  in  the  suit  at 
law  it*  the  pleadings  mentioned,  called  on  Elias  Vanarsdalen,  esq. 
one  of  the  masters  of  this  court,  according  to  the  practice  of  the 
court,  to  hear  the  case,  and  advise  the  court  what  order  or  decree 
ought  to  be  made.  The  case  was  heard  before  the  master,  on  writ- 
ten arguments,  by 

C.  L.  Hardenberg,  for  the  complainant,  and 
Oeo.  Wood,  for  the  defendant. 


30  CASES  IN  CHANCERY. 

Caramann  v.  Executor  of  Traphagan. 

After  inspecting  the  pleadings  and  considering  the  arguments, 
the  master  reported  to  the  court  his  opinion  in  writing,  as  follows — 
which  at  this  term  was  delivered  by 

THE  CHANCELLOR  :  The  plea,  not  being  denied  by  a  replica- 
tion, must  on  the  argument  be  considered  as  true.  As  to  all  the 
matters  of  defence  at  law,  within  the  complainant's  knowledge 
when  the  trial  took  place,  the  master  perceives  no  reason  to  ques- 
tion the  propriety  of  the  defence  in  this  court  made  by  this  plea : 
Miff.  206,  3d  ed. ;  Beams,  E.  PL  197.  The  court  of  common  pleas 
of -Somerset  was  a  court  of  competent  jurisdiction,  and  the  com- 
plainant's defence,  as  to  all  matters  within  his  knowledge  at  the 
time,  ought  to  have  been  made  in  that  court.  The  absence  of  the 
complainant  and  his  engagements  in  business,  were  not  deemed  by 
the  court  sufficient  grounds  for  putting  off  the  cause,  or  granting  a 
new  trial ;  and  their  decision  ought  to  be  final.  But  as  to  the 
matter  alleged  to  have  come  to  tlie  complainant's  knowledge  since 
the  trial  at  law,  this  court  very  properly  granted  the  injunction  and 
required  the  discovery  sought  by  the  bill:  1  John.  C.  R.  98,  322, 
and  cases  there  cited  ;  6  John.  C.  R.  87  ;  1  John.  Ca.  492,  &c. ;  4 
John.  R.  510;  14  John.  R.  69 ;  7  Cranch.  R.  336;  1  Wash.  R. 
321  :  And  had  the  defendant  admitted  what  is  alleged  in  this  re- 
spect, this  court  might  have  granted  the  relief  prayed.  But,  the 
defendant  having  denied  the  matters  so  charged,  the  complainant 
has  no  ground  of  equity  for  relief.  The  plea  of  the  defendant 
ought  therefore  to  be  allowed,  and  (according  to  the  statute)  with 
costs. 

The  plea  was  accordingly  allowed,  and  at  a  subsequent  term  the 
injunction  dissolved  and  bill  dismissed  with  costs. 

SEE  Same  Case,  Sax.  230. 


JULY  TERM,  1830.  31 

Marselis  et  al.  v.  Morris  Canal  and  Banking  Co. 


P.  MABSELIS  AND  OTHERS  v.  THE  MOREIS  CANAUAND  BANKING 

COMPANY. 


The  rules  of  pleading  in  a  court  of  equity,  are  not  so  technical  and  precise  as  in 
courts  of  law.  The  powers  of  the  court,  and  modes  of  administering  relief, 
authorize  and  require  greater  liberality.  Still,  when  principles  have  by  re- 
peated adjudications  become  settled,  it  is  quite  as  important  that  these  prin- 
ciples should  be  preserved  in  this  as  any  other  court. 

The  court  will  not  permit  several  plaintiffs  to  demand  by  one  bill,  several  mat- 
ters perfectly  distinct  and  unconnected,  against  one  defendant ;  nor  one  plain- 
tiff to  demand  several  matters  of  distinct  natures,  against  several  defendants. 

A  bill  filed  by  several  complainants  on  behalf  of  themselves  and  all  others,  over 
whose  lands  the  Morris  Canal  and  Banking  Company  have  made  their  canal, 
who  shall  come  in  and  contribute;  charging  that  the  defendants  had  entered 
on  the  complainants'  lands  without  permission,  or  having  purchased  or 
agreed  for  the  same,  and  excavated  their  canal  and  done  the  complainants 
great  damage,  and  that  the  company  is  insolvent  and  unable  to  pay ;  and 
praying  that  an  account  may  be  taken  and  damages  awarded  to  the  complain- 
ants for  the  injuries  already  sustained,  and  compensation  for  their  lands 
taken  by  the  company  decreed  to  them,  and  that  an  injunction  may  issue 
restraining  the  company  from  using  or  occupying  the  land ;  is  multifarious, 
and  on  that  account  the  injunction  refused. 

Where  the  demands  of  several  complainants  united  in  the  same  bill,  are  entirely 
distinct  and  independent;  where  there  is  no  privity  between  them  ;  no  gene- 
ral right  to  be  established  as  against  the  defendant;  no  common  interest  in 
all  the  complainants,  centering  in  the  point  in  issue  in  the  cause:  no  general 
right  claimed  by  the  bill  and  covering  the  whole  case;  no  rights  established 
in  favor  of  complainants;  and  no  demand  maSe,  that  the  funds  of  the  de- 
fendant shall  be  applied  to  the  payment  of  the  complainants'  claims  after 
their  adjustment:  and  where  their  claims  are  not  in  rem  but  in  personam; — • 
the  bill  cannot  be  sustained. 

A  bill  by  several  to  compel  the  specific  performance  of  a  contract  for  the  sale  of 
real  estate,  in  which  the  complainants  hold  distinct  rights,  cannot  be  sus- 
tained. 


Peter  Marselis,  Peter  Zeliff,  and  others,  to  the  number  of 
thirty-eight,  claiming  to  be  landholders  in  the  counties  of  Essex 
and  Bergen,  filed  their  bill  against  the  Morris  Canal  and  Bank- 
ing Company,  in  behalf  of  themselves  and  all  others  over  whose 
lands  the  said  company  had  laid  their  canal,  and  who  should 
come  in  and  seek  relief  by  and  contribute  to  the  expenses  of  the 
suit.  The  bill  charges  that  the  defendants  entered  on  the  l^nds 


32  CASES  IN  CHANCERY. 

Maiselis  et  al.  v.  Morris  Canal  and  Banking  Co. 

of  the  complainants  without  permission,  and  without  having  first 
purchased  or  agreed  for  the  lands,  and  excavated  their  canal, 
doing  to  the  said  complainants  great  damage ;  and  that  the  said 
company  is  insolvent  and  unable  to  pay.  The  bill  then  prays 
that  an  account  may  be  taken,  and  damages  awarded  to  the  con- 
plainants  for  the  injuries  they  have  ^already  sustained,  and  that 
compensation  for  the  lands  thus  occupied  by  the  company  may 
be  decreed  to  them ;  and  also,  that  in  the  mean  time  an  injunc- 
tion may  be  issued  restraining  the  company  from  using  or  occu- 
pying the  said  lands  on  which  the  canal  is  located,  either  for 
the  purpose  of  a  canal  or  for  any  other  purpose. 

March  16,  1830. — A  motion  was  made  for  an  injunction,  ac- 
cording to  the  prayer  of  the  bill.  A  number  of  questions  were 
raised  and  discussed  in  the  argument,  on  which  no  opinion  was 
expressed  by  the  court.  Upon  the  point  on  which  the  case  turned, 
it  was  insisted  by*  the  counsel. 

PA.  Dickerson  and  G.  Wood,  in  support  of  the  motion — 
That  all  the  complainants  are  landholders  over  whose  lands  the 
defendants  had  made  their  canal,  who  had  all  sustained  injury  by 
the  operations  of  the  company,  and  had  not  received  the  compen- 
sation to  which  they  were  entitled.  That  it  was  proper  they  should 
all  join  in  this  bill,  and  have  their  claims  ascertained  and  settled 
in  the  same  suit,  to  prevent  multiplicity  of  suits.  That  this  was 
allowed  in  many  cases  where  there  was  a  number  of  persons  ha- 
ving distinct  claims  against  the  same  person  or  property;  as  in 
cases  of  creditors,  cases  concerning  rights  of  fishery,  concerning  a 
modus,  and  others.  That  the  case  of  the  complainants  in  this  bill 
was  within  the  general  principle.  That  the  canal  was  one  single 
common  object,  for  the  use  of  which  the  lands  of  all  the  complain- 
ants had  been  taken.  It  was  one  franchise,  held  by  one  person, 
a  corporation  :  that  was  one  side.  On  the  other  side  was  the  com- 
plainants, landholders  having  distinct  interests  in  this  common 
object.  That  the  company  might  file  a  bill  of  peace,  against  the 
complainants  and  all  the  landholders  on  the  route  of  the  canal : 
and  the  rule  operated  both  ways.  That  the  canal  was  an  entirety 
through  its  whole  extent.  And  when  a  dispute  existed  through 
the  whole  length  of  this  entirety,  all  parties  might  come  in.  That 


JULY  TERM,  1830.  S3 

Marselis  et  al.  v.  Morris  Canal  and  Banking  Co. 

the  complainants'  having  distinct  rights  of  possession  and  title 
was  of  no  consequence.  All  their  claims  could  be  adjusted  in 
this  suit.  That  it  was  better  to  have  thirty-eight  issues  or  assess- 
ments under  one  bill,  than  thirty-eight  separate  bills  and  proceed- 
ings under  all  of  them,  in  some  of  which  the  interest  might  be  so 
inconsiderable  as  not  to  justify  the  expense  of  separate  suits.  That 
the  defendants  claimed  the  right  to  take  the  lands  (subject  to  com- 
pensation) under  the  franchise  granted  by  their  charter,  which 
was  one  contract.  The  complainants  also  claimed  under  this 
contract:  in  it  the  rights  of  all  parties  were  involved.  The 
remedy  sought  by  the  bill  was  to  enforce  the  execution  of  this  con- 
tract, or  obtain  redress  for  its  violation  ;  for  which  purpose  the 
complainants  were  properly  joined.  In  support  of  these  princi- 
ples they  cited,  Brinlcerhoof  v.  Brown,  6  John.  R.  139 ;  Dur- 
ham v.  "Herbert,  2  Atk.  R.  484;  Coop.  Eg.  PL  158;  11  Vesey, 
jr.  429  ;  1  John.  C.  R.  349,  447  ;  2  Bridgm.  Lid.  572,  s.  213, 
tit.  Titties,  7  ;  3  Anst.  R.  841  ;  16  Ves.jr.  328. 

J.  C.  Hornblowcr  and  /.  H.  Williamson,  contra — Insisted 
that  the  bill  in  this  case  was  multifarious:  that  there  was  a  mis- 
joinder  of  parties  and  causes  of  action.  There  were  thirty-eight 
complainants,  owning  different  tracts  of  land  in  different  places,, 
having  distinct  and  separate  interests,  complaining  of  separate 
trespasses,  and  praying  that  the  defendants  might  account  to  themi 
separately  and  not  jointly.  That  parties  situated  as  they  were 
could  not  unite  in  one  bill.  If  thirty-eight  landholders  might 
unite,  the  whole  250,  from  the  Delaware  to  the  Passaic  might,  and! 
each  complainant's  case  might  require  a  different  answer:  some 
might  claim  in  fee,  others  in  tail,  and  others  have  mortgage  inter- 
ests as  the  foundation  of  their  rights;  while  the  injuries  of  which 
they  complained  were  so  many  separate  and  distinct  trespasses. 
That  the  matters  complained  of  in  this  bill,  could  not  be  settled  in 
one  issue  or  trial ;  there  must  be  thirty-eight  distinct  issues  or 
references.  That  the  complainants  had  no  joint  or  common  in- 
terest in  the  matters  in  question  ;  no  joint  evidence  could  be  intro- 
duced, and  no  joint  relief  given.  That  the  only  interest  common 
to  all  the  complainants  was,  that  they  all  had  demands  against  the 
same  defendant;  which  was  not  sufficient.  That  the  cases  cited. 

C 


34  CASES  IN  CHANCERY. 

Marselis  et  al.  v.  Morris  Canal  and  Banking  Co. 

on  the  other  side  were  all  of  a  different  character.  That  the  bill 
in  this  case  was  framed  on  the  model  of  a  bill  filed  .by  creditors 
for  themselves  and  others  who  might  come  in.  The  cases  were  not 
analogous.  That  judgment  and  execution  creditors  might  join 
in  filing  a  bill  for  themselves  and  others,  to  obtain  satisfaction  of 
their  demands  out  of  the  same  property  or  fund.  To  enable  them 
to  do  this,  they  must  have  established  their  claims  at  law.  And  in 
this  as  in  other  cases,  where  one  bill  might  be  filed  by  several  com- 
plainants, they  must  all  have  one  right  in  one  subject,  and  all 
must  be  bound  by  the  decree ;  but  in  this  case  the  landholders 
not  joined  would  not  be  bound.  That  in  the  case  of  a  will,  the 
defendants  might  have  distinct  claims,  but  in  the  same  subject. 
So  in  the  case  of  rights  of  fishery.  So  where  there  was  one  gen- 
eral right  and  privity  between  the  parties,  as  in  the  case  of  a  par- 
son and  the  parishioners.  That  there  must  be  one  general  right 
covering  the  whole  case;  and  where  one  general  right  might  be 
settled  in  one  suit,  the  parties  might  join  to  prevent  multiplicity  of 
suits.  That  the  principal  cases  where  parties  might  join,  were 
suits  by  devisees,  legatees,  creditors,  stockholders,  members  of 
voluntary  associations,  <fec.  That  in  such  cases  no  decree  could 
be  made  without  affecting  the  rights  of  all.  All  having  a  common 
interest  in  the  same  fund,  they  were  quasi  parties;  and  where 
they  were  so  numerous  that  all  could  not  be  brought  before  the 
court,  a  part  might  file  a  bill  for  the  whole.  That  there  was  no 
case  where  parties  might  unite  in  this  way,  except  where  the 
claim  of  all  was  against  the  same  fund,  the  proceedings  in  rem, 
and  where  all  would  be  bound  by  the  decree ;  which  was  not  the 
case  in  this  instance.  That  the  general  principle  governing  this 
case  was,  that  several  complainants  could  not  demand  several 
distinct  and  unconnected  matters  in  one  bill.  That  it  was  not 
sufficient  that  they  all  stood  in  the  same  relation  to  the  defendants. 
That  one  bill  by  several  purchasers  of  distinct  parcels,  for  specific 
performance,  could  not  be  sustained,  nor  a  bill  by  two  complainants, 
against  one  defendant,  for  invasion  of  copy  rights,  in  some  of  which 
they  were  jointly  and  in  others  separately  interested,  because  in 
the  latter  the  claims  were  distinct.  That  a  bill  would  not  lie 
against  several  tenants  of  a  manor,  to  recover  quit-rents,  because 
the  matters  in  difference  could  not  be  tried  in  any  one  issue. 


JULY  TERM,  1830.  35 

Marselis  et  al.  v.  Morris  Canal  and  Banking  Co. 

They  cited  Coop.  Eg.  PL  182;  Beams.  PI.  Eq.  158;  Bunb.  R. 
69;  2  Anst.  477  ;  2  Dick.  R.  677  ;  1  Mad.  R.  86  ;  2  Ves.jr.  323, 
486  ;  1  Bro.  C.  C.  200;  2  ScAo.  and  Lef.  370. 

THE  CHANCELLOR.  The  matter  comes  before  the  court  on  an 
application  for  an  injunction.  A  number  of  objections  have  been 
urged  against  the  bill  in  the  shape  in  which  it  is  presented  before 
the  court.  And  among  others,  it  is  objected,  that  this  is  not  one 
of  the  cases  in  which  the  complainants  may  lawfully  join  in  the 
prosecution  of  the  suit.  That  their  interests,  instead  of  being  joint 
or  common,  are  separate,  independent  and  distinct;  and  being 
blended  together,  the  bill  is  multifarious  and  therefore  bad.  This 
is  the  first  point  I  propose  to  consider.  The  question  who  are  and 
who  are  not  necessary  or  proper  parties  to  a  bill  in  equity,  and  what 
rights  may  be  brought  together  in  one  suit,  is  one  that  sometimes 
occasions  perplexity.  While  care  must  be  taken  on  the  one  hand, 
to  bring  all  proper  parties  before  the  court,  the  same  care  should 
be  taken  on  the  other,  that  none  are  brought  there  whose  rights 
are  not  to  be  in  some  way  bound  by  the  decree  that  may  be  made. 
So  too,  while  the  court  will,  for  the  sake  of  avoiding  a  multiplicity 
of  actions,  take  cognizance  of  suits  in  which  many  rights,  having 
reference  to  one  subject  matter,  are  united ;  it  must  be  careful  not 
to  admit  several  plaintiffs  to  demand  by  one  bill,  several  matters 
perfectly  distinct  and  unconnected. 

The  rules  of  pleading  in  a  court  of  equity,  fcre  not  so  technical 
and  precise  as  in  the  courts  of  law.  The  general  powers  of  this 
court,  and  its  peculiar  modes  of  administering  relief,  authorize  and 
require  a  greater  degree  of  liberality  than  would  be  expedient  in 
the  courts  of  common  law.  Still,  when  principles  have  by  repea- 
ted adjudications  become  settled,  and  especially  when  they  are 
founded  injustice  and  the  fitness  of  things,  it  is  quite  as  important 
that  those  principles  should  be  preserved  in  this  as  in  any  other 
court. 

To  ascertain  and  apply  the  correct  rule  to  this  case,  it  is  necessary 
to  see  precisely  what  the  case  is.  The  complainants  complain  of 
an  injury  which  they  have  sustained  by  the  acts  of  the  defendant, 
in  excavating  their  canal  through  the  lands  of  complainants. 
They  are  several  owners,  having  distinct  rights  in  the  seve- 
ral tracts  of  land  through  which  the  canal  passes.  The  inju- 


36  CASES  IN  CHANCERY. 


Marselia  et  al.  v.  Morris  Canal  and  Banking  Co. 

ries  sustained  by  one  of  them  have  no  necessary  or  natural 
connexion  with  those  sustained  by  another.  Admitting  the  juris- 
diction of  the  court,  each  of  these  complainants  might  sue  sepa- 
rately, either  in  a  court  of  law  or  equity,  without  consulting  with 
any  other  one,  and  without  in  the  least  degree  affecting  his  rights. 
On  the  other  hand,  the  suit  is  brought  by  all  of  them  against  one 
common  defendant.  They  all  complain  of  injuries  similar  in  their 
character,  and  seek  a  similar  relief;  and  therefore  have  a  common 
object  in  view.  It  is  admitted  by  the  bill  that  all  the  landholders 
are  not  before  the  court,  or  have  not  joined  in  the  suit.  But  the 
complainants  allege  that  the  suit  is  brought  for  the  benefit  of  all 
who  will  come  in  and  contribute.  Such  is  the  complainants'  case. 
Let  us  examine  some  of  the  leading  authorities  for  the  principles 
that  should  govern  it.  In  Bouverie  v.  Prentice,  1  Bro.  C.  C. 
200,  Lord  Thurlow  held,  that  when  a  number  of  persons  claim 
one  right,  in  one  subject,  one  bill  may  be  sustained,  to  put  an  end 
to  suits  and  litigation.  That  was  the  case  of  a  bill  filed  by  the 
lady  of  a  manor  against  several  tenants  for  quit-rents  due,  and 
this  method  was  adopted  to  prevent  multiplicity  of  suits.  But  it 
was  not  considered  as  coming  within  the  principle  laid  down  by 
the  court.  The  Lord  Chancellor  remarked,  that  n6  one  issue 
could  try  the  oause  between  any  two  of  the  parties ;  and  he  could 
not  conceive  upon  what  principle  two  different  tenants,  of  distinct 
estates,  should  be  brought  before  him  together  to  hear  each  other's 
rights  discussed. 

In  Ward  v.  The  Duke  of  Northumberland,  2  Anst.  469,  the 
court  says,  that  the  cases  where  unconnected  parties  may  join  in  a 
gait,  are,  where  there  is  one  common  interest  in  them  all,  centering 
in  the  point  in  issue  in  the  cause.  In  that  case  a  bill  was  filed 
against  two  defendants  jointly  as  executors,  and  against  one  of 
them  as  heir,  for  an  account  under  an  agreement  entered  into  with 
the  ancestor.  It  contained  matters  having  no  other  connexion, 
than  that  one  of  the  defendants  was  a  party  in  them  all.  Separate 
demurrers  were  put  in  and  allowed. 

Ld.  Redesdale,  in  Whaley  v.  Dawson,  2  Scho.  and  Lcf.  367, 
held  this  principle;  that  where  there  was  a  general  right  claimed 
by  the  bill  covering  the  whole  case,  the  bill  would  be  good,  though 
the  defendants  had  separate  and  distinct  rights :  but  if  the  sub- 
jects of  the  suits  were  in  themselves  perfectly  distinct,  a  demurrer 


JULY  TERM,  1830.  37 

Marselis  et  al.  v.  Morris  Canal  and  Banking  Co. 

would  be  sustained.  The  same  rule  is  recognized  in  Saxton  v. 
Davis,  18  Ves.  72,  and  1  Vern.  463,  Hester  v.  Weston.  In  the 
Mayor  of  York  v.  Pilk'mgton,  1  Atk.  282,  the  bill  was  filed  to 
quiet  the  plaintiff  in  a  right  of  fishery,  against  the  defendants, 
who  claimed  several  rights  in  the  same  fishery,  and  for  a  discove- 
ry and  account  of  the  fish  they  had  taken.  The  bill  was  de- 
murred to,  and  Ld.  Hard  wick  at  first  allowed  the  demurrer,  but 
after  a  re-hearing  overruled  it,  and  stated  it  to  be  no  objection  that 
the  defendants  had  separate  defences  ;  that  the  plaintiff  claimed  a 
general  right  to  the  sole  fishery,  that  extended  to  all  the  defen- 
dants;  and  that  they  might  take  advantage  of  their  several  ex- 
ceptions or  distinct  rights.  It  was  held  necessary  to  support  the 
bill,  to  prevent  a  multiplicity  of  suits.  In  Coop.  Eq.  PL  182, 
this  rule  is  given  :  "  The  court  will  not  permit  several  plaintiffs  to 
demand  by  one  bill,  several  matters  perfectly  distinct  and  uncon- 
nected, against  one  defendant;  nor  one  plaintiff  to  demand  seve- 
ral matters,  of  distinct  natures,  against  several  defendants."  And 
to  exemplify  the  rule,  the  following  case  is  given,  from  2  Dick, 
677  :  If  an  estate  was  sold  in  lots  to  different  persons,  the  pur- 
chasers could  not  join  in  one  bill  against  the  vendor  for  a  specific 
performance:  for  each  party's  case  would  be  distinct,  and  would 
depend  upon  its  own  peculiar  circumstances;  and  there  must  be 
a  distinct  bill  upon  each  contract,  or  the  bill  might  be  demurred 
to.  Nor  could  such  vendor,  on  the  other  hand,  file  one  bill  for 
specific  performance  against  all  the  purchasers.  And  Ld.  Ken- 
yon,  in  Birkley  v.  Presgrave,  1  East.  R.  227,  says,  that  he 
has  known  the  attempt  sometimes  made,  where  an  estate  has  been 
contracted  to  be  sold  in  parcels  to  many  different  persons,  to  file 
a  bill  in  the  names  of  all  of  them  to  compel  specific  performance, 
which  has  been  constantly  refused.  And  he  adds,  that  in  general  a 
court  of  equity  will  not  take  cognizance  of  distinct  and  separate 
claims,  of  different  persons,  in  one  suit,  though  standing  in  the 
same  relative  situation.  In  the  case  of  Brinkerhoff  v.  Brown, 
6  John.  C.  R.  139,  Chancellor  Kent  reviews  the  leading  authori- 
ties, and  comes  to  this  conclusion  ;  that  a  bill  filed  against  several 
persons,  must  relate  to  matters  of  the  same  nature,  and  having  a 
connection  with  each  other,  and  in  which  all  the  defendants  are 
more  or  less  concerned,  though  their  rights  in  respect  to  the  gea- 
eral  subject  of  the  case  may  be  distinct. 


38  CASES  IN  CHANCERY. 

Marselis  et  al.  v.  Morris  Canal  and  Banking  Co. 

I  lay  out  of  view,  as  altogether  inapplicable,  all  that  class  of 
cases  which  relates  to  creditors,  legatees,  &c.  where  a  great  many 
persons  are  sometimes  interested,  and  the  court  will  permit 
some  to  represent  the  whole,  upon  the  well  settled  principle,  that, 
though  all  the  persons  interested  are  not  made  parties,  yet  there  is 
such  a  privity  between  them  that  a  complete  decree  may  be 
made.  And  in  Coop.  Eq.  P.  41,  the  cases  of  lords  and  tenants, 
in  regard  to  questions  of  common  ;  of  parsons  and  parishioners,  in 
relation  to  a  modus,  and  others  of  a  similar  nature,  are  brought  into 
the  same  class  on  the  ground  of  privity.  These  last  may  with  more 
propriety,  perhaps,  be  classed  under  that  branch  of  equity  that 
relates  to  bills  of  peace.  These  bills  have  no  affinity  with  the  one 
now  before  the  court.  It  is  true  the  legitimate  object  of  them  was, 
to  avoid  multiplicity  of  suits;  and  the  ancient  and  correct  practice 
of  the  court  was,  not  to  interfere  until  the  legal  right  had  first  been 
tried  at  law,  in  an  individual  case;  after  which,  the  court  would 
interpose  to  quiet  that  right,  by  injunction  :  Jeremy  on  Eq.  Ju.  344. 
This  is  not  a  bill  of  peace :  and  I  believe  that  it  has  not  been 
contended  that  a  landholder  in  the  county  of  Morris  or  Warren, 
not  coming  in  and  making  himself  a  party  to  this  suit,  would 
be  in  any  wise  affected  by  it.  I  think  the  principle  laid  down 
in  Cooper  is  the  correct  one ;  that  it  is  fairly  deducible  from 
the  cases  and  must  govern  this,  viz:  that  the  court  will  not 
permit  several  plaintiffs  to  demand  by  one  bill,  several  matters 
perfectly  distinct  and  unconnected,  against  one  defendant ;  nor 
one  plaintiff  to  demand  several  matters  of  distinct  natures,  against 
several  defendants.  And  according  to  this  principle  I  feel  constrain- 
ed to  say,  that  the  bill  cannot  be  sustained.  There  is  no  kind  of 
privity  between  these  complainants;  there  is  no  general  right  to  be 
established  as  against  this  defendant,  except  the  general  right, 
that  a  wrong  doer  is  liable  to  answer  for  his  misdeeds  to  the 
injured  party:  which  surely  does  not  require  to  be  estab- 
lished by  such  a  proceeding  as  this.  The  utmost  that  can  be 
said,  is,  that  the  defendant  stands  in  the  same  relative  position 
to  all  these  complainants.  There  is  no  common  interest  in  them 
all,  centering  in  the  point  in  issue  in  the  cause ;  which  is  the  rule 
in  2  Anst.  469.  Nor  is  there  any  general  right  claimed  by  the 
bill,  covering  the  whole  case;  which  is  the  principle  adopted  by 
Lord  Redesdale,  vide  ante.  Chancellor  Kent's  rule  is  quite  as 


JULY  TERM,  1830.  39 

Marselis  et  al.  v.  Morris  Canal  and  Banking  Co. 

broad  as  any  authority  will  warrant ;  but  it  is  not  broad  enough  for 
the  case  now  before  the  court.  It  requires  that  a  bill  against 
several  persons  must  relate  to  matters  of  the  same  nature,  and  hav- 
ing a  connexion  with  each  other,  and  in  which  all  the  defendants 
are  more  or  less  concerned,  &c.  The  case  that  was  then  before 
that  learned  judge,  is  the  best  exposition  of  his  rule,  and  shows 
how  utterly  inapplicable  it  is  to  the  present  one.  The  plaintiffs 
were  judgment  creditors,  having  claims  against  an  incorporated 
company,  established  by  law,  and  not  the  subject  of  litigation.  The 
general  right  claimed  by  the  bill,  was  a  due  application  of  the 
capital  of  that  company  to  the  payment  of  their  judgments;  and 
that  upon  the  ground  of  fraud  charged  in  the  creation,  man- 
agement and  disposition  of  the  capital,  in  which  all  the  defen- 
dants were  implicated,  though  in  different  degrees.  In  the  case 
before  the  court  there  are  no  rights  established ;  and  what  in 
my  view  is  more  important,  there  is  no  demand  made,  that  the 
funds  or  capital  of  the  company  shall  be  applied  to  the  payment  of 
the  complainants'  claims  after  they  shall  have  been  adjusted.  The 
claim  is  one  not  in  rem,  but  in  personam  merely. 

It  was  admitted  by  one  of  the  complainants'  counsel,  that  the 
company  had  a  right  to  take  the  land  under  the  charter,  paying 
for  it  a  fair  compensation.  And  it  was  urged  that  this  charter  pri- 
vilege was  in  the  nature  of  a  contract ;  that  under  this  contract 
the  defendants  entered ;  and  that  the  case  presented  is  one  of  a 
contract  for  the  sale  of  lands,  with  a  part  performance  on  one  side. 
This  view  of  the  matter  does  not  obviate  the  difficulty.  The  bill  is 
obnoxious  to  the  same  objection,  whether  the  demand  made  by  it 
be  considered  as  arising  ex  contractu  or  ex  delicto.  It  is  well  settled, 
that  a  bill  by  several  to  compel  the  specific  performance  of  a  con- 
tract for  the  sale  of  real  estate,  in  which  the  complainants  hold 
distinct  rights,  cannot  be  sustained.  This  conclusion  renders  it 
unnecessary,  and  perhaps  improper,  for  me  to  look  into  any  other 
parts  of  the  case.  On  the  ground  that  the  bill  is  multifarious, 

The  injunction  is  refused. 


40  CASES  IN  CHANCERY. 

Church  at  Acquackanonk  v.  Ex'rs.  of  Ackerman  et  al. 

THE  DUTCH  CHURCH  AT  ACQUACKANONK  v.  THE  SURVIVING 
EXECUTORS  OF  ABRAHAM  ACKERMAN,  DEC'D,  AND  OTHERS. 


On  a  legacy  bequeathed  to  the  widow  in  lieu  of  dower,  interest  allowed  after  one 
year  from  the  testator's  death,  upon  the  common  rule  applicable  to  legacies 
generally. 

The  exception,  allowing  interest  from  the  testator's  death  on  legacies  intended 
as  a  maintenance,  applies  only  to  infant  children,  and  does  not  extend  to 
the  widow. 

The  allowance  of  interest  on  a  legacy  is  not  regulated  by  the  fund  out  of  which 
it  is  to  be  paid,  whether  productive  or  not. 

The  widow  is  excused  in  declining  to  make  her  election  when  required  to  do  so 
by  the  executors,  and  in  not  accepting  the  legacy  bequeathed  to  her  in  lieu 
of  dower,  while  a  controversy  was  pending  respecting  the  will  of  the  testator, 
BO  far  as  it  affected  the  real  estate  with  which  her  rights  under  the  will  were 
in  a  degree  connected  ;  and  having  afterwards,  within  the  time  directed  by 
the  court,  elected  to  accept  the  legacy,  she  is  entitled  to  interest  on  it  from 
the  expiration  of  one  year  after  the  testator's  death. 


Abraham  Ackerman,  on  the  28fch  December,  1827,  made  and 
executed  his  last  will  and  testament,  in  the  presence  of  three  sub- 
scribing witnesses;  in  which,  among  other  things,  he  devised  to  his 
wife  $200  in  money,  some  personal  property,  and  a  lot  of  land 
in  fee ;  and  also  bequeathed  her  $2000,  to  be  paid  to  her  out  of  his 
estate  as  soon  as  conveniently  might  be,  in  lieu  of  her  dower.  And 
bequeathed  to  the  minister,  elders  and  deacons  of  the  true  Re- 
formed Dutch  Church  at  Acquackanonk  $1500;  and  also  one 
sixth  part  of  all  the  residue  of  his  estate.  The  testator  died  on 
the  28th  January,  1828 ;  the  will  was  proved  before  the  surrogate, 
and  letters  testamentary  granted  to  the  executors ;  who  collected 
debts,  paid  off  some  of  the  legacies,  had  overplus  money  in  hand, 
called  on  the  widow  to  elect  whether  she  Would  claim  her  dower, 
or  accept  the  legacy  of  $2000,  given  in  lieu  of  it;  and  in  case  of 
her  acceptance,  offered  to  pay  her  the  legacy.  But,  one  of  the  in- 
strumental witnesses  to  the  will  being  an  elder  and  trustee  of  the 
church  :  and  doubts  having  arisen,  whether  the  church  was  enti- 
tled to  the  legacy  of  $1500,  and  whether  the  will  was  duly  exe- 
cuted to  pass  real  estate,  and  the  interest  of  the  widow  in  the  lot 
devised  to  her  might  not  be  affected:  she  declined  making  her 


JULY  TERM,  1830.  41 

Church  at  Acquackanonk  v.  Ex'rs  of  Ackerman  et  al. 

election,  or  receiving  the  legacy  of  $2000  in  lieu  of  dower;  and 
the  executors  declined  paying  the  legacy  to  the  church  until  the 
matter  should  be  settled  by  a  competent  tribunal.  The  bill  in  this 
case  was  thereupon  filed  by  the  church,  against  the  surviving  execu- 
te, the  widow,  legatees  and  heirs  at  law  of  the  testator,  for  the 
purpose  of  establishing  the  will  and  recovering  the  legacy  of  $1500. 
The  widow  and  executors  answered,  admitting  the  facts,  and 
praying  the  direction  of  the  court.  The  cause  came  on  in  July, 
1829,  upon  bill  and  answers,  and  leave  was  given  to  the  complai- 
nants to  examine  the  witnesses  to  prove  the  due  execution  of  the 
will,  and  a  general  reference  as  to  debts,  legacies,  &c.,  directed. 
Another  hearing  was  had  in  October,  1829 ;  whereupon  it  was 
decreed,  that  the  will  be  established,  and  the  trusts  thereof  perform- 
ed ;  and  Jane  Ackerman,  the  widow,  was  directed  to  signify  iu 
writing  to  the  court,  within  thirty  days  after  being  served  with  a 
copy  of  the  decree,  whether  she  would  claim  her  dower,  or  accept 
the  legacy  of  $2000  in  lieu  of  it;  and  farther  equity  and  direc- 
tions reserved.  The  widow,  within  the  thirty  days,  (on  the  16th 
December,  1829,)  certified  to  the  chancellor  her  election  to  accept 
the  legacy  in  lieu  of  dower:  upon  which  the  executors  paid  her  the 
$2000 ;  but,  as  they  had  before  offered  to  pay,  and  she  had  refused 
to  accept  it,  they  declined  paying  her  any  interest  on  it  without 
the  direction  of  the  court,  and  the  cause  was  again  set  down  for 
farther  hearing  and  direction  upon  this  point. 

> 

J.  C.  Hornblower,  for  the  widow,  insisted,  that  the  widow  was 
entitled  to  interest  from  the  death  of  the  husband,  by  analogy  to 
the  case  of  children,  who  are  entitled  to  interest  for  maintenance, 
notwithstanding  a  day  of  payment  was  fixed  ;  and  because  it  was 
payable  out  of  land,  and  intended  as  a  provision  for  the  widow,  in 
lieu  of  her  dower  in  the  testator's  real  estate,  which  would  have 
produced  a  profit ;  and  it  was  to  be  presumed  the  testator  intended 
something  equally  beneficial.  That,  if  he  had  died  out  of  posses- 
sion, she  could  have  demanded  dower,  and  obtained  the  profits  from 
the  time  of  the  demand.  That,  if  she  was  not  entitled  to  interest 
from  the  testator's  death,  she  was  entitled  to  it  from  the  expiration 
of  one  year  after,  upon  the  general  rule  regulating  the  payment 
of  interest  on  legacies,  notwithstanding  her  delay  in  making  her 


42  CASES  IN  CHANCERY. 

Church  at  Acquackanonk  v.  Ex'rs  of  Ackerman  et  al.  , 

election,  and  refusal  to  accept  the  legacy  when  payment  was 
offered ;  for  which  she  had  a  sufficient  excuse  in  the  uncertainty 
that  existed  concerning  the  will.  That,  although  the  interest  was 
not  claimed  in  her  answer,  or  mentioned  in  the  former  arguments 
or  decrees,  it  might  be  given  tinder  the  reservation  of "  all  far- 
ther questions,"  &c.  He  cited  Lupion  v.  Lupton,  1  John.  C.  R. 
614,  628;  Crocket  v.  Dolby,  3  Ves.  jr.  16;  Ingraham  v.  For- 
sal,  1  McCord  E.  94,  8;  Irby  v.  McGray,  4  Dessaus.  R.  422; 
Glen  v.  Fisher,  6  John.  C.  R.  33  ;  Goodyear  v.  Lake,  Amb.  R. 
584 ;  Campt  v.  Mesin,  6  John.  C.  R.  22,  3;  2  Ves.  jr.  164;  2  Atk. 
R.  439. 

E.  Vanarsdale,  contra — made  no  objections  on  account  of  the 
interest  not  having  been  brought  in  question  in  an  earlier  stage 
of  the  cause,  or  on  account  of  the  principal  sum  of  $2000  being 
paid  ;  but  insisted,  that  the  widow  was  not  entitled  to  interest  on 
the  legacy  from  the  death  of  the  husband,  upon  the  ground  of  its 
being  given  as  a  provision  for  her  support;  the  rule  allowing 
interest  for  maintenance,  extending  only  to  the  case  of  infant 
children  :  nor  on  account  of  its  being  a  legacy  out  of  lands ;  the 
distinction  with  respect  to  the  fund  out  of  which  a  legacy  was  paya- 
ble, having  been  abolished.  That  she  was  not  entitled  to  inter- 
est after  the  year,  as  payment  of  the  legacy  had  been  offered  to 
her,  and  she  had  declined  accepting  it.  That  the  doubts  which 
existed  as  to  the  will,  affected  the  legacy  given  to  the  church,  but 
did  not  extend  to  her  legacy.  The  only  doubt  that  affected  her 
interest,  was,  as  to  the  lot  of  land  devised  to  her.  That,  if  she 
was  embarrassed  by  it,  the  residuary  legatees  ought  not  to  suffer. 
He  cited,  12  Ves.  jr.  461 ;  15  Ves.  jr.  301  ;  2  John.  C.  R.  628 ; 
1  Swans.  R.  553 ;  7  Ves.  jr.  96  ;  Fran.  Max.  105;  Marsh.  Ken.  R. 
161 ;  3  Bin.  R.  295. 

Hornblower,  in  reply.  This  is  not  the  case  of  a  mere  legacy. 
It  is  a  provision  for  the  wife  in  lieu  of  an  estate  in  land,  of  which 
the  husband  could  not  deprive  her,  by  his  will  or  otherwise;  which 
would  have  produced  a  present  profit.  That  the  interest  of  the 
residuary  legatees  could  not  affect  her  rights. 


JULY  TERM,  1830.  43 


Smith  v.  Allen  et  al. 


THE  CHANCELLOR.  This  case  comes  up  on  an  application  to 
the  court  for  directions,  as  to  the  payment  of  interest  on  a  legacy  of 
$2000,  given  to  the  widow,  by  the  will  of  Ackerman,  the  testator. 
On  looking  into  the  matter,  I  see  nothing  to  take  the  case  out  of 
the  common  rule  applicable  to  interest  on  legacies  generally.  The 
idea  that  this  was  intended  as  a  maintenance  to  the  widow,  and 
that  therefore  interest  should  be  allowed  from  the  death  of  the  tes- 
tator, cannot  be  supported.  The  exception  extends  to  infants 
only.  1  Swans.  R.  553;  2  John.  C.  R.  628.  The  only  dictum 
to  be  found  in  favor  of  extending  the  exception  to  the  wife,  is 
that  of  Lord  Alvanley,  in  Crocket  v.  Dolby,  3  Ves.jr.  16  ;  and  this 
has  been  many  times  overruled :  Stent  v.  Robinson,  12  Ves.  jr. 
461;  Lowndes  v.  Lowndes,  15  Ves.  jr.  301  ;  Raven  v.  Waite,  1 
Swans.  553 ;  and  the  cases  there  cited.  Nor  is  it  material  that  the 
legacy  in  this  case  was  payable  out  of  the  land.  The  question  of 
interest  is  not  regulated  by  the  fund  out  of  which  the  legacy  is  to  be 
paid,  whether  it  be  productive  or  not :  Gibson  v.  Bott,  7  Ves.jr.  89. 
On  the  other  hand,  the  legatee  is  not  to  be  deprived  of  her  interest, 
because  she  declined  receiving  the  legacy  when  payment  was  offer- 
ed by  the  executors.  A  controversy  was  pending  respecting  the  will 
of  the  testator,  so  far  as  it  affected  the  real  estate ;  with  that  contro- 
versy her  rights  under  the  will  were  in  a  degree  connected  ;  and  I 
think  she  is  excused,  at  least,  if  not  justified,  in  declining  to  receive 
the  legacy  until  the  matter  was  settled.  The  executors  have  per- 
formed their  duty  fully ;  and  the  widow  has  done  nothing,  as  I 
conceive,  to  forfeit  her  rights.  My  opinion  is,  that  the  widow  be 
allowed  interest  on  the  legacy  from  the  28th  day  of  January,  1829, 
being  one  year  from  the  testator's  death. 


SMITH  v.  ALLEN  ET  AL. 


A  general  demurrer  admits  the  truth  of  all  the  material  allegations  of  the  com- 
plainant's bill  that  are  well  pleaded. 

Where  a  sheriff,  colore  officli,  takes  a  bond  for  the  performance  of  matters  not 
authorized  by  the  statute,  the  bond  is  void. 

But  if  there  be  a  mere  verbal  difference  or  departure  from  the  provision  of  the 
statute,  which  imposes  no  new  duty  on  the  obligor,  or  no  duties  diverse  from 


44  CASES  IN  CHANCERY. 

Smith  v.  Allen  et  al. 

those  required  by  the  statute  as  justly  and  legally  expounded,  the  bond  will 
be  good. 

If,  under  the  act  of  1799,  Rev.  L.  426,  which  directs  the  courts  of  common  pleas 
to  mark  and  lay  out  the  bounds  and  rules  of  the  prisons  in  their  several  coun- 
ties, and  provides  li  ihat  every  prisoner  in  any  civil  action,  giving  bond  to  the 
sheriff  with  sufficient  securities,  that  he  will  keep  within  the  said  bounds,  shall 
have  liberty  to  walk  therein;  and  if  he  walk  out  of  said  bounds  the  bond 
shall  be  forfeited,"  the  sheriff  take  a  bond  with  condition  "  that  the  prisoner 
shall  keep  within  the  bounds  of  the  prison  limited  and  prescribed  by  the 
judges  of  the  court  of  common  pleas  of  the  county  of  E — ,  and  not  walk  out 
or  depart  the  same  until  he  be  discharged  by  due  course  of  law,"  it  is  within  the 
rule,  and  a  good  bond. 

Such  a  bond  is  not  a  bond  of  indemnity,  strictly  speaking.  It  does  not  lie  in  the 
mouth  of  the  obligors  to  say  the  sheriff  is  not  damnified.  There  is  no  neces- 
sity of  showing  an  actual  damnification.  The  bond  is  actually  forfeited  by 
the  defendant  going  off  the  limits,  and  the  cause  of  action  is  made  out  by 
proving  the  bond  and  the  escape. 

Equity  will  not  interpose  to  effect  the  forfeiture  of  a  privilege,  the  divesting  of 
an  estate,  the  taking  away  of  a  right  by  condition,  subsequent  or  otherwise, 
or  the  discovery  of  some  matter  which  may  render  an  act  done  illegal  and 
thereby  subject  the  party  to  a  penalty.  But  this  rule  does  not  apply  to  the 
case  of  reforming  a  mistake  in  a  bond  for  the  prison  limits. 

When  the  proof  of  a  mistake  in  a  bond  is  full  and  satisfactory,  equity  will 
relieve,  even  against  securities;  and  that  as  well  where  the  complainant  seeks 
relief  affirmatively,  on  the  ground  of  the  mistake^  as  where  the  defendant 
sets  it  up  to  re_but  an  equity  :  such  a  case  is  not  within  the  statute  of  frauds. 


The  bill  states  that  the  complainant  was  sheriff  of  Essex 
county.  That  about  the  25th  day  of  May,  1826,  there  was  placed 
in  his  hands  a  writ  of  capias  ad  satisfaciendum,  issued  out  of  the 
inferior  court  of  common  pleas  of  said  county,  against  D.  K.  Allen 
at  the  suit  of  the  president,  directors  and  company  of  the  Paterson 
bank,  for  $979.57,  besides  interest;  and  that  on  the  same  day  he 
arrested  the  defendant,  by  virtife  of  the  said  writ.  That  the  said 
D.  K.  Allen,  insisting  on  the  benefit  of  the  prison  limits,  and  offer- 
ing sufficient  sureties,  the  complainant  agreed  to  accept  the  same, 
and  permit  him  to  walk  within  the  said  limits.  That  the  com- 
plainant prepared  a  bond,  which  was  on  the  same  day  executed 
by  the  defendants  in  this  case,  Allen,  Cobb,  and  Carrick;  and 
thereupon  he  permitted  the  said  defendant,  Allen,  to  walk  within 
the  limits  of  the  prison.  That  on  the  same  day  the  said  Allen  did 
knowingly  and  intentionally  walk  out  of  the  limits,  and  still  re- 
mains out  of  the  same,  against  the  condition  of  the  bond.  That 
the  complainant,  in  the  hurry  of  business,  and  by  mere  accident 


JULY  TERM,  1830.  45 


Smith  v.  Allen  et  al. 


and  mistake,  in  drawing  the  said  bond,  described  the  writ  in  the 
reciting  part  of  the  condition  of  the  bond,  as  an  original  execution, 
and  returnable  the  fourth  Tuesday  of  April ;  whereas  the  said  writ 
should  have  been  described  as  a  ca.  sa.  post  fi.fa.  and  returnable 
the  fourth  Tuesday  in  June.  That  the  writ  was  described  as  issu- 
ing for  the  sum  of  $979.57,  with  interest  from  20th  September, 
182o ;  whereas  on  the  face  of  the  writ  it  purported  to  be  for  the 
sum  of  $979.57,  residue  of  damages  and  costs,  but  was  endorsed  to 
have  been  issued  for  that  sum  with  interest  as  aforesaid,  which  led 
to  the  error,  if  any  it  is,  and  that  this  was  through  mistake  and 
inadvertence.  That  the  plaintiff  in  the  execution,  threatened  to 
proceed  against  the  complainant  as  for  an  escape,  and  refused  to 
accept  an  assignment  of  the  bond,  but  agreed  to  bring  a  suit  thereon 
in  the  name  of  the  complainant.  An  action  was  accordingly  com- 
menced ;  and  a  declaration  having  been  filed,  the  defendants  have 
pleaded  (inter  alia)  that  the  said  bond  was  not  given  to  the  com- 
plainant under  and  by  virtue  of  the  arrest  of  the  said  D.  K.  Allen, 
upon  the  said  writ  of  ca.  sa.  in  the  said  declaration  mentioned  : 
under  which  plea  it  is  supposed  they  intend  to  avail  themselves  of 
the  said  mistakes.  That  after  this  plea  pleaded,  the  bank  refused 
to  proceed  farther,  but  left  the  suit  to  be  carried  on  by  the  complai- 
nant at  his  own  expense,  and  have  now  prosecuted  the  complainant 
for  an  escape.  The  bill  prays  that  the  recital  in  the  condition  of 
the  said  bond  may  be  reformed  and  corrected,  and  made  according 
to  the  fact  and  truth  of  the  case ;  and  that  tfye  defendants  may  be 
restrained  from  setting  up  or  insisting  on,  by  way  of  defence,  the 
aforesaid  variance  or  discrepancy  between  the  writ  and  the  recitals 
in  the  condition  of  the  bond  ;  and  that  the  defendants  may  be  re- 
strained from  non-prossing  the  complainants  for  not  replying  to 
said  plea  until  they  shall  have  answered,  &c. 

To  this  the  defendants  have  filed  a  general  demurrer. 

E.  Vanarsdale,  for  the  defendants.  The  demurrer  ought  to 
prevail,  because  the  complainant  has  not  made  such  a  case  as 
would  enable  him  to  support  his  action  at  law,  if  the  mistake  in 
the  bond  was  rectified  according  to  the  prayer  of  the  bill :  3  Bro. 
C.  C.  155;  Beams.  PL  Eq.  276.  The  condition  of  the  bond 
taken  by  the  sheriff  is  larger  and  more  comprehensive  than  the 
statute  requires  or  authorizes.  The  condition  prescribed  in  the 


46  CASES  IN  CHANCERY. 

Smith  v.  Allen  et  al. 

act,  Rev.  L.  426,  is,  "that  the  defendant  will  keep  within  the 
bounds  of  the  prison  ;"  to  which,  in  this  bond  is  added,  "  and  not 
walk  out  or  depart  the  same  until  discharged  by  due  course  of  law." 
This  imposes  a  duty  not  authorized  by  the  statute,  which  might 
operate  oppressively.  If  the  prisoner  should  compromise  with  the 
plaintiff,  and  walk  off  the  limits,  without  obtaining  a  regular  dis- 
charge from  prison,  the  bond  would  be  forfeited.  The  bond  is 
therefore  void :  1  Pen.  R.  118 ;  2  Pen.  R.  500;  19  John.  R.  233. 
But  if  the  bond  was  good,  the  complainant  is  not  entitled  to  the 
relief  prayed.  This  suit  is  to  aid  the  action  at  law.  In  that  action 
the  sheriff  must  show  that  he  is  damnified  by  the  prisoner  having 
gone  off  the  limits ;  which  he  could  not  do  at  the  time  the  action 
was  commenced  by  him.  No  action  had  then  been  commenced 
against  him,  and  it  might  be  that  he  would  never  be  called  on. 
Before  he  can  maintain  an  action  on  the  bond,  he  must  have  paid 
the  money.  10  John.  584.  The  complainant  seeks  to  have  this 
bond  rectified  to  enable  him  to  enforce  a  penalty ;  but  equity  does 
not  assist  in  the  recovery  of  a  forfeiture :  4  John.  C.  R.  431 ;  1 
Peters  R.  236 ;  19  Ves.  jr.  225.  But  the  main  question  is,  can 
the  complainant  come  into  this  court  and  falsify  his  bond  to  have 
it  carried  into  effect.  He  alleges  no  fraud  ;  the  bond  was  drawn  by 
himself.  He  sets  forth  no  previous  agreement  that  the  defendant 
should  give  him  a  different  bond;  he  has  nothing  by  which  to 
rectify  the  bond.  Equity  will  interfere  to  prevent  a  party  enforcing 
an  agreement  entered  into  by  mistake,  but  not  where  he  seeks  to 
have  an  agreement  corrected  to  enable  him  to  enforce  it :  3  Bro. 
C.  C.  390,  in  notes ';  1  Ves.  and  Beam.  R.  396.  This  rule  is  founded 
on  the  general  law  of  evidence,  and  on  the  statute  of  frauds  :  Rev. 
L.  152.  This  bond  is  within  the  14th  section,  which  relates  to 
contracts  to  answer  for  the  debt,  default  or  miscarriage  of  another. 
Hence  the  mistake,  if  any  exist,  cannot  be  amended:  7  Ves.  jr. 
211 ;  14  Ves.  524 ;  15  Ves.  516;  2  Mad.  C.  120;  1  Scho.  and  Lef. 
22;  1  Bro.' C.  G  92. 

J.  C.  Hornblower,  for  the  complainant.  I  admit  the  position 
that  relief  here  would  be  unavailing,  if  after  rectifying  the  bond  we 
have  no  remedy  at  law.  But  the  statute  under  which  the  bond 
was  taken,  Rev.  L.  426,  does  not  prescribe  the  form  of  the  condi- 
tion ;  it  only  gives  the  substance,  and  states  what  shall  be  a  for- 


JULY  TERM,  1330.  47 


Smith  v.  Allen  et  al. 


feiture.  The  condition  of  the  bond  taken  by  the  sheriff  is  not 
more  comprehensive  than  that  authorized  by  the  act.  It  is  sub- 
stantially the  same.  Both  branches  of  the  condition  mean  the 
same  thing :  either  would  be  sufficient,  and  in  compliance  with 
the  act.  The  latter  part  is  merely  a  repetition,  in  other  words,  of 
what  is  comprised  in  the  former.  It  imposes  no  additional  obliga- 
tion, and  may  be  regarded  as  surplusage.  In  the  cases  cited  on 
the  other  side,  the  enlargement  of  the  condition  of  the  bonds  be- 
yond what  the  law  authorized,  was  manifest.  The  additions 
were  material.  The  difficulty  suggested  by  the  counsel  cannot 
occur  under  a  bond  like  the  present.  If  the  prisoner  satisfy  the 
execution  on  which  he  is  confined,  the  law  authorizes  him  to  go  off 
the  limits,  without  an  order  of  the  court :  this  is  a  discharge  in  due 
course  of  law.  A  bond  to  keep  within  the  prison  bounds  is  not  a 
bond  of  indemnity,  in  the  legal  acceptance  of  the  term.  The 
plea  of  non-damnificatus  cannot  be  pleaded  to  an  action  brought 
upon  such  a  bond.  It  is  not  necessary  the  sheriff  should  have 
paid  the  money,  to  enable  him  to  maintain  an  action.  The  cause 
of  action  is  made  out  by  proving  the  bond,  and  the  escape  :  5  John. 
R.42:  1  Saund.  R.  171,  JV.  1  ;  Cro.  EL  914;  1  Leon.  71  ;  3 
Mod.  252 ;  Garth.  375 ;  5  Mod.  243 ;  1  Bos.  and  P.  638  ;  ib. 
40,  JV.  b.;  Cowp.  47;  2  T.  R.  100;  ib.  640;  7  T.  R.  97  ;  14 
John.  177;  1  John.  R.  271.  The  case  in  10  John.  R.  584,  is 
not  applicable:  the  plea  of  non-damnificatus  was  not  pleaded  in 
that  case,  (See  9  John.  R.  234.)  Under  our  Matute,  Rev.  L.  651  : 
If  the  prisoner  go  beyond  the  limits,  it  is  "an  absolute  forfeiture 
of  the  bond  ;  and  the  sheriff,  or  plaintiff  in  case  the  bond  has  been 
assigned  to  him,  may  maintain  an  action  on  the  bond,  notwith- 
standing the  prisoner  may  have  returned  within  the  prison  limits 
before  the  commencement  of  the  suit."  And  the  plaintiff  must 
have  judgment  for  the  penalty,  and  execution  for  the  amount  due  : 
15  John.  R.  474.  The  objection  that  equity  will  not  assist  by 
reforming  the  bond,  in  order  to  enforce  a  penalty,  applies  to  a  class 
of  cases  very  different  from  the  present.  We  are  seeking,  by 
means  of  this  bond,  the  recovery  of  a  debt.  It  is  not  necessary 
for  us  to  charge  fraud  :  mistake  is  equally  a  ground  for  equitable 
relief:  1  Ves.  and  Beam.  165.  As  to  a  previous  agreement  by 
which  to  correct  the  bond,  it  is  implied  in  the  very  nature  of  the 
transaction.  It  was  to  give  such  a  bond  as  we  desire  this  to  be 


48  CASES  IX  CHANCERY. 

Smith  v.  Allen  et  al. 

made;  such  a  bond  as  the  law  required  upon  the  arrest  of  the 
defendant,  by  virtue  of  the  writ  on  which  he  was  taken  and  in 
custody.  The  writ  we  have  set  out  in  the  bill.  As  to  the  statute 
of  frauds,  our  case  is  not  within  it.  We  are  seeking  the  liability 
of  the  man  who  owes  the  debt,  and  have  the  agreement  in  writing 
required  by  the  statute.  If  there  is  any  mistake  in  this,  the  court 
have  power  to  correct  it,  even  against  sureties.  No  question  can 
now  be  made  as  to  the  competency  or  sufficiency  of  the  evidence 
to  prove  the  mistake.  We  are  here  upon  a  state  of  facts  set  forth 
in  the  bill,  and  a  demurrer,  which  admits  the  truth  of  every  thing 
well  pleaded.  Free,  in  Ch.  309  ;  2  Atk.  31  ;  3  Ves.  jr.  580 ;  2 
Ch.  Ca.  225  ;  2  Freem.  R.  -16  ;  4  T.  R.  213 ;  2  John.  Ca.  42 ; 
Finch.  413;  9  John.  R.  285;  Days  C.  Er.  139;  2  Atk.  203; 
1  Fes.  317;  1  John.  C.  R.  274. 

Vanarsdale,  in  reply.  The  New  York  case,  10  John,  applies 
to  the  present.  The  only  difference  between  the  statutes  of  New- 
York  and  New-Jersey  as  to  giving  bond,  is,  that  our  last  act  pre- 
vents the  party  from  pleading  a  voluntary  return  before  suit 
brought.  The  true  distinction  as  to  enforcing  forfeitures,  is  to  be 
found  in  1  Rail  &  Rea.  273.  This  is  not  a  case  in  which  the 
court  will  correct  the  bond  :  no  agreement  is  set  forth  in  the  bill. 
The  cases  where  mistakes  have  been  corrected  on  joint  and  several 
bonds,  are  upon  the  principle  that  the  parties  were  all  originally 
liable:  here  there  was  no  pre-existing  liability  to  pay;  it  is  the 
bond  that  creates  the  liability  :  1  Pet.  N.  J.  R.  14 ;  2  Nemv.  36. 
The  statute  of  frauds  will  not  permit  an  amendment  in  such  a 
case.  The  sureties  are  within  the  statute,  and  may  have  the 
benefit  of  the  demurrer,  if  the  principal  cannot,  although  the 
demurrer  is  joint :  8  Ves.  jr.  403. 

THE  CHANCELLOR.  It  is  contended,  in  the  first  place,  that  the 
complainant  has  not  by  his  bill  made  such  a  case  as  will  support 
his  action  at  law,  even  if  the  mistakes  in  the  bond  are  rectified. 
And  it  is  very  properly  admitted,  that  if  this  be  so  the  bill  cannot 
be  sustained,  and  the  demurrer  is  well  taken.  The  ground  of 
objection  is,  that  the  condition  of  the  bond  which  is  sought  to  be 
reformed,  is  larger  than  the  statute  requires  or  authorizes,  and 
therefore  the  bond  itself  is  void.  The  condition  of  the  bond  is, 


JULY  TERM,  1830.  49 

Smith  v.  Allen  et  al. 

"  that  if  the  above  named  D.  K.  Allen,  shall  and  do  keep  within 
the  bounds  of  the  prison,  limited  and  prescribed  by  the  judges  of 
the  inferior  court  of  common  pleas  in  and  for  the  county  of  Essex, 
and  not  walk  out  or  depart  the  same  until  he  be  discharged  by 
due  course  of  law,  then  this  obligation  to  be  void,"  &c.  The  only 
condition  prescribed  by  the  statute  is,  that  the  prisoner  shall  keep 
within  the  bounds  prescribed  by  the  court  of  common  pleas,  &c. 
The  objection  cannot  prevail.  It  is  true,  that  when  a  sheriff, 
colore  officii,  takes  a  bond  for  the  performance  of  matters  not 
authorized  by  statute,  such  bond  is  void.  The  power  of  the 
officer  in  that  behalf  is  a  strict  power,  and  shall  not  be  extended. 
But  while  this  principle  is  fully  recognized,  care  must  be  taken 
in  its  application,  that  the  ends  of  justice  be  not  defeated  by  tech- 
nical or  verbal  criticism.  In  the  case  of  Sullivan  v.  Alexander, 
19  John.  R.  234,  cited  by  the  defendants'  counsel,  the  rule  is  laid 
down  broadly,  that  when  there  is  a  substantial  variance, — as  if 
the  sheriff  adds  to  the  condition,  that  he  shall  be  kept  without  dam- 
age against  the  king  and  the  plaintiffs, — that  will  make  the  whole 
condition  void.  But  it  is  also  added,  that  a  mere  verbal  difference 
or  departure  from  the  provision  of  the  statute,  will  not  render  the 
bond  void. 

If  the  condition  of  the  bond  imposes  no  new  duties  on  the  obli- 
gors, or  no  duties  diverse  from  those  required  by  the  statute  as- 
justl)  and  legally  expounded,  then  it  will  be^ood.  And  I  am. 
clearly  of  opinion  that  this  condition  is  within  that  rule.  The 
condition  jn  the  statute  is  very  brief.  It  is  simply,  that  the  pri^ 
soner  shall  keep  within  the  bounds  of  the  prison.  The  condi- 
tion of  the  bond  is,  that  he  shall  keep  within  the  bounds  of  the 
prison  limits,  and  not  walk  out  or  depart  the  same.  This  latter 
part  imposes  no  new  duty.  It  is  simply  a  repetition  of  the  former 
part,  but  clothed  in  a  new  dress.  It  is  mere  surplusage,  and 
cannot  vitiate.  But  the  condition  of  the  bond  goes  farther,  and 
says,  the  prisoner  shall  not  depart  the  limits  until  he  be  discharg- 
ed by  due  course  of  law.  And  it  was  contended  that  this  might 
operate  hardly  upon  the  prisoner :  that  if  the  debt  was  paid,  and 
he  departed  the  limits  without  some  judicial  order,  the  bond  would 
be  forfeited.  If  this  were  even  true,  would  it  not  apply  with 
equal  force  to  a  bond,  the  condition  of  which  was  simply,  that  the 
prisoner  should  keep  within  the  limits?  This,,  taken  literally,. 

D 


60  CASES  IN  CHANCERY. 

Smith  v.  Allen  et  al. 

would  mean,  that  not  only  the  payment  of  the  debt,  but  even  the 
order  of  the  court,  would  be  insufficient  to  warrant  the  prisoner  in 
walking  off  the  limits;  and  that  if  he  did  so  depart,  the  bond 
would  be  forfeited.  It  is  absolute,  and  admits  of  no  exception. 
But  this  is  not  the  true  construction.  When  .the  money  is  paid, 
the  defendant  can  no  longer  be  retained  in  custody  ;  the  object  of 
the  execution  is  satisfied.  The  command  of  the  writ  is,  that  the 
sheriff  take  the  body  of  the  defendant,  and  keep  him,  so  that  he 
satisfy  the  plaintiff  the  debt  or  damages,  as  the  case  may  be. 
Upon  the  payment  of  the  money  he  is  to  be  discharged.  He 
has  a  legal  right  to  demand  it;  and  if  the  sheriff  discharges  him 
he  does  it  lawfully ;  or  as  the  bond  says,  he  is  discharged  by  due 
course  of  law.  I  am  satisfied  that  this  bond  is  substantially  correct. 
If  not  precisely  according  to  the  form  of  the  statute,  yet  "  it  is  to  be 
known,"  as  Lord  Coke  says,  "that  there  are  two  manner  of  forms, 
so.  forma  verbalis  and  forma  legalis ;  forma  verbalis  stands 
upon  the  letters  and  syllables  of  the  act :  forma  legalis  is  forma 
essentialis,  and  stands  upon  the  substance  of  the  thing  to  be 
done,  and  upon  the  sense  of  the  statute :  qua  notitia  ramorum 
hujus  statuti  non  in  sermonum  foliis,  sed  in  rationis  radice,  posita 
est."  Beauj 'age's  case,  10  Co.  100. 

But  it  is  alleged  that  if  the  bond  is  a  good  bond  in  these 
particulars,  the  complainant  does  not  show  such  a  case  as 
entitles  him  to  relief.  He  does  not  show  that  he  is  damnified. 
He  has  not  paid  the  money,  and  the  plaintiff  in  the  execution  may 
never  call  on  him.  That  when  the  bill  was  filed,  the  suit  for  an 
escape  was  not  instituted ;  and  we  must  regard  the  rights  of  the 
parties  as  they  were  when  the  bill  was  filed. 

It  is  expressly  stated  in  the  bill,  that  an  action  for  the  escape 
had  been  brought  against  the  complainant,  by  the  Paterson  bank, 
and  was  then  pending.  This  allegation  must  be  taken  as  true, 
and  is  so  considered  by  the  court  under  the  demurrer  filed.  It  is 
not  however,  deemed  important.  This  bond  is  not  a  bond  of 
indemnity,  strictly  speaking.  There  is  no  necessity  of  showing 
an  actual  damnification.  The  bond  is  forfeited  by  the  defen- 
dant's going  off  the  prison  limits.  It  is  an  escape,  and  the 
sheriff  is  liable.  It  does  not  lie  in  the  mouth  of  the  defendant  to 
say,  you  are  damnified ;  you  have  not  yet  been  obliged  to  pay 
the  money  ;  and  while  you  thus  remain  uninjured,  you  have  no 


JULY  TERM,  1830.  51 


Smith  v.  Allen  et  al. 


rights  against  rne.  It  is  unjust  that  the  sheriff  should  be  exposed 
to  an  absolute  liability,  have  the  means  in  his  own  hands  of  pro- 
tecting himself  against  it,  and  yet  be  unable  to  move,  until  the 
plaintiff  in  the  execution  shall  first  move  against  him.  The 
cause  of  action  is  made  out  by  proving  the  bond  and  the  es- 
cape :  Kip  v.  Brigham,  7  John.  R.  271.  And  this  is  mani- 
festly so  under  our  statute.  The  sheriff  is  authorized  to  assign 
the  bond.  If  there  was  no  right  of  action  in  the  sheriff  he  could 
convey  none  to  the  plaintiff,  and  the  assignment  would  be  una- 
vailing. As  well,  therefore,  on  the  ground  that  this  bond  is  not  a 
bond  of  indemnity,  as  that  the  forfeiture  under  the  statute  is  an 
absolute  forfeiture,  and  that  a  right  of  action  follows  as  a  necessary 
consequence,  this  second  objection  is  deemed  insufficient. 

The  third  objection  raised  to  the  complainant's  bill,  is,  that 
it  seeks  to  get  the  bond  rectified  in  order  to  enforce  a  penalty ; 
and  it  is  said  that  equity  does  not  assist  in  the  recovery  of  a  for- 
feiture. That  is  unquestionably  the  doctrine  of  this  court.  But  the 
attempt  to  apply  it  to  a  case  like  the  present,  is  not  sustained  even 
by  the  decisions  adduced  by  the  defendant's  counsel.  The  case 
of  Livingston  v.  Tompkins,  4  John.  C.  R.  415,  was  an  injunc- 
tion case;  and  the  injunction  was  moved  for  on  the  ground,  that 
the  grant  from  the  plaintiff  to  the  defendant  had  ceased  and  be- 
come void,  in  consequence  of  the  matters  charged  in  the  bill.  In 
that  case,  Chancellor  Kent  referred  to  a  distinct  and  well  known 
class  of  cases,  showing  that  a  man  is  not  bound  to  answer  so  as 
to  subject  himself,  either  directly  or  eventually,  to  a  forfeiture  or 
penalty :  and  that  a  court  of  equity  will  not  aid  in  working  a  for- 
feiture, or  divesting  an  estate.  The  cases  of  Hosburg  v.  Baker,  1 
Peters  U.  S.  E.  232,  and  Paxton  v.  Douglass,  19  Ves.  224,  also 
referred  to,  are  of  the  same  character.  They  have  reference  to  the 
forfeiture  of  some  privilege,  the  divesting  of  some  estate,  the  taking 
away  of  some  right  by  condition  subsequent  or  otherwise ;  or  to 
the  discovery  of  some  matter  which  may  render  an  act  done  illegal, 
and  thereby  subject  the  party  to  a  penalty.  To  effect  these 
objects,  equity  will  not  interpose.  But  neither  the  rule  nor  the 
reason  of  the  rule,  has  any  application  to  this  case. 

The  real  question  arises  upon  the  fourth  objection  ;  which  is, 
that  although  a  court  of  equity  will  relieve,  in  cases  of  mistake,  to 
prevent  a  party  from  enforcing  an  agreement  entered  into  by 


52  CASES  IN  CHANCERY. 

Smith  v.  Allen  et  al. 

mistake ;  yet  it  will  not  aid  a  party  who  seeks  to  have  an 
agreement  corrected,  for  the  purpose  of  enforcing  it.  And  the 
reason  assigned  is,  that  it  would  be  contrary  to  the  provisions  of 
the  statute  for  the  prevention  of  frauds  and  perjuries,  and  also 
contrary  to  the  general  law  of  evidence.  This  objection,  if  sound, 
is  radical,  and  therefore  requires  a  careful  consideration.  The 
question  comes  up  on  a  general  demurrer,  which  admits  all  the 
material  allegations  of  the  complainant's  bill  that  are  well  pleaded. 

The  bill  states,  that  Allen  was  duly  arrested,  by  virtue  of  the 
writ,  and  was  in  custody :  that  he  requested  permission  to  walk 
within  the  prison  limits  ;  and,  offering  sufficient  sureties,  the  com- 
plainant agreed  to  accept  them,  and  thereupon  prepared  a  bond, 
which  was  executed  by  the  defendants :  and  that  then  the  com- 
plainant permitted  the  said  Allen  to  have  the  benefit  of  the  prison 
limits.  The  bill  further  states,  that  the  alleged  variation  between 
the  bond  and  the  writ,  was  owing  to  the  "  hurry  of  business,  and 
by  mere  accident  and  mistake."  There  is  no  explicit  agreement 
set  forth  in  the  bill,  as  having  been  made  between  the  complai- 
nant and  all  the  defendants,  or  even  between  the  complainant  and 
Allen  himself,  in  relation  to  the  kind  of  bond  that  was  to  be  given  ; 
and  it  was  contended  that  the  bill  was  defective  in  that  particular. 
I  think  it  is  not.  This  is  a  case  where  the  agreement,  if  entered  into 
at  all,  must  have  been  regulated  by  law.  It  admitted  of  neither 
extension  nor  abridgment.  If,  then,  the  defendant,  Allen,  on 
being  arrested,  requested  to  have  the  benefit  of  the  limits,  and 
offered  sufficient  sureties  to  enable  him  to  procure  it,  and  the  sheriff 
agreed  he  should  have  ^it  on  gjving  bond  with  security,  and  the 
bond  was  accordingly  prepared  and  given  ;  it  is  manifest  that  the 
one  party  agreed  to  give,  and  the  other  to  accept,  such  a  bond  as 
would  enable  the  sheriff  legally  to  release  the  defendant  from  ar- 
rest in  that  particular  case,  so  far  as  to  give  him  the  benefit  of  the 
limits.  The  agreement  and  the  mistake  are  sufficiently  charged. 
How  or  by  what  proof  they  may  be  sustained,  is  not  now  to  be 
considered. 

The  inquiry,  then,  presents  itself,  can  such  a  mistake  be 
permitted  to  be  shown  by  the  complainant,  to  correct  the 
bond  on  which  he  seeks  to  recover :  or  can  it  only  be  shown 
by  the  defendant,  when  set  up  to  rebut  an  equity  ?  This  is 
not  alleged  to  be  a  case  of  fraud,  but  of  mere  mistake ;  and  it 


JULY  TERM,  1830.  53 


Smith  v.  Allen  et  al. 


was  forcibly  argued,  that  even  if  cases  of  fraud  might  properly  be 
considered  as  exceptions,  and  out  of  the  statute,  mistakes  were  to 
be  placed  altogether  on  a  different  footing.  That  a  defendant 
may  set  up  and  avail  himself  of  a  plain  mistake  in  a  written 
agreement,  and  thereby  relieve  himself  from  the  operation  of 
the  agreement,  is  a  principle  too  well  settled  in  courts  of  equity 
to  be  shaken  at  this  day.  It  would  be  a  waste  of  time  to 
enumerate  the  authorities.  That  the  plaintiff  is  entitled  to  the 
same  assistance  to  enable  him  to  recover,  has  not  been  uniformly 
admitted  at  Westminster  Hall,  but  there  is  a  train  of  cases  in 
favor  of  the  proposition,  which  certainly  go  very  far  towards 
settling  it.  In  Uridale  v.  Half "penny,  -2  P.  Wms.  151,  (1723,) 
a  bill  was  filed  to  rectify  a  mistake  in  a  settlement,  in  placing 
the  term  after  the  limitation  in  tail  to  the  sons,  whereas  the 
term  should  have  been  before  such  limitation.  Sir  Joseph  Jekyll 
sustained  the  bill,  and  helped  the  mistake.  This  case  was  after- 
wards recognized  and  approved  of  by  Ld.  Hard  wick,  in  Hene- 
age  v.  Hunloke,  2  Atk.  456.  In  Simpson  v.  Vaughan,  2  Atk, 
31,  (1739,)  Ld.  Hardwtck  corrected  a  bond,  which,  by  mistake, 
was  made  a  joint  bond  instead  of  a  joint  and  several  bond:  and 
this  was  done  on  the  application  of  the  complainant.  The  case 
of  Hinkle  v.  The  Royal  Exchange  Assurance  Company,  1  Ves. 
sen.  317,  was  decided  by  the  same  chancellor  in  1749,  and  is 
a  leading  case  on  the  subject.  The  bill  was  filed  to  have  a 
policy  of  insurance  rectified.  The  warranty  was  from  London, 
when  it  was  insisted  it  should  have  been  from  Ostend  only.  Ld. 
Hardwick  says,  "no  doubt  but  this  court  has  jurisdiction  to 
relieve,  in  respect  of  a  plain  mistake  in  contracts  in  writing,  as 
well  as  against  frauds  in  contracts,  so  that  if  reduced  into  writing 
contrary  to  the  intent  of  the  parties,  on  proper  proof  that  would 
be  rectified."  Evidence  was  admitted  to  show  the  mistake,  but 
not  being  conclusive,  the  bill  was  dismissed,  without  costs.  In 
Baker  v.  Paine,  1  Ves.  sen.  456,  (1750,)  articles  of  agreement 
were  allowed  to  be  rectified  on  application  of  the  complainant,  by 
the  minutes  and  calculations  made  at  the  time.  Again,  in  Burn 
v.  Burn,  3  Fes  jr.  573,  (1797,)  a  joint  bond  was  held  by  Lord 
Rosslyn  to  be  a  several  bond,  even  against  creditors,  and  the  mis- 
take was  shown  on  the  part  of  the  complainant.  So  also  in  the 
South  Sea  Co.  v.  D'Oliffe,  cited  6  Ves.  jr.  601,  the  party  was 


64  CASES  IN  CHANCERY. 

Smith  v.  Allen  et  al. 

relieved  against  a  mistake  in  a  bond,  given  by  way  of  security, 
six  mouths  having  been  inserted  instead  of  two  months.  The 
same  doctrine  is  maintained  by  Ld.  Thurlow  in  Taylor  v.  Radd, 
cited  in  3  Bro.  C,  R.  454,  and  by  Ld.  Eldon,  in  Barsiow  v. 
Kilvington,  5  Ves.  jr.  593.  In  this  last  case  a  settlement  was 
reformed  in  favor  of  the  younger  children,  against  the  heir  of  the 
mother.  The  chancellor  remarks,  that  the  settlement  was  cer- 
tainly such  as  never  could  have  been  the  deliberate  intention  of 
the  parties  making  it;  and  the  evidence  being  full,  the  mistake 
was  rectified.  It  would  be  needless  to  multiply  authorities.  They 
may  be  found  collected  in  2  Bridgm.  Index,  320,  tit.  Mistake;  Sug- 
den  on  Vendors,  120;  Jeremy  on  Eq.  Ju.  432,  456,  489. 

There  are  cases  which  seem  to  lead  to  a  different  conclusion  : 
such  as  Woolam  v.  Hearn,  7  Ves.  jr.  211 ;  Higginson  v.  Clowes, 
15  Ves.  jr.  516;  and  Clinan  v.  Cook,  I  Scho.  &  Lef.  38.  But 
these  are  all  cases  where  bills  were  filed  for  a  specific  performance, 
and  in  which  the  complainant  undertook  to  aver  against  his 
own  instrument.  They  appear  to  be  governed  by  a  differ- 
ent rule,  the  correctness  of  which  has'  been  questioned  by  high 
authority.  See  4  John.  C.  R.  148,  Kisselbaeh  v.  Livingston. 
But  in  relation  to  reforming  deeds,  bonds,  mortgages,  &c.  the 
weight  of  authority  is  evidently  in  favor  of  the  power  of  this 
court,  whether  sought  on  the  part  of  the  complainant  or  the  defen- 
dant ;  and  that,  whether  the  matter  to  be  corrected  has  originated 
in  fraud  or  mistake.  The  statute  of  frauds  does  no  more  protect 
the  defendant  against  mistake  than  the  plaintiff:  both  stand  on 
the  same  foot.  In  this  country  the  principle  has  been  recognized 
very  distinctly  by  chancellor  Kent,  in  Wiser  v.  Blachly,  1  John. 
C.  R.  607,  where  a  guardianship  bond  was  corrected  and  enforced, 
even  against  sureties,  and  upon  the  broad  principle,  that  where  a 
mistake  was  manifest,  the  court,  in  the  exercise  of  its  ordinary 
jurisdiction,  would  correct  it,  and  hold  the  party  according  to  his 
original  intention.  So  in  Gillespie  v.  Moore,  2  John.  C.  R.  585, 
the  court,  after  collecting  and  revising  most  of  the  cases  on  the 
subject,  decided  that  equity  would  relieve  against  a  mistake,  and 
that  as  well  when  the  complainant  seeks  relief  affirmatively,  on 
the  ground  of  mistake,  as  where  the  defendant  sets  it  up  as  a 
defence,  or  to  rebut  an  equity.  This  case  came  under  review  in 
the  court  of  errors,  on  the  argument  of  the  appeal  of  Lyman  v. 


JULY  TERM,  1830.  55 

Ex'r  of  Simmons  v.  Vandegrift  et  al. 

The  Utica  Insurance  Co. ;  and  the  broad  principle  was  sustained 
by  a  large  majority  of  the  court.  Chief  Justice  Spencer,  in  remark- 
ing on  it,  says,  that  "  it  will  remain  a  land-mark  for  future  deci- 
sions: the  reasoning  is  strong,  irresistible,  and  conclusive:"  17 
John.  R.  377.  I  am  satisfied  to  adopt  this  as  the  correct  principle. 
It  is  supported  by  the  current  of  authorities  and  the  reason  of  the 
thing.  It  should  be  carefully  guarded,  I  admit.  The  evidence  to 
support  the  mistake  should  be  full  and  satisfactory  ;  such  as  to  leave 
no  room  for  reasonable  doubt,  especially  if  denied  by  the  defendant's 
answer.  But  when  such  evidence  is  adduced,  and  the  use  intended 
to  be  made  of  the  mistake  is  unconscionable  and  oppressive,  it 
would  seem  to  be  the  privilege  and  the  duty  of  this  court  to  inter- 
fere, so  as  to  prevent  gross  and  flagrant  injustice.  Under  this  view 
of  the  case  I  shall  order  the  demurrer  to  be  overruled,  with  costs. 

CITED  in  Hendricksonv.  Ivins,  Sax.  569 ;  Martin  v.  Bighter,  2  Slockt.  516  ;  Firm- 
stone  v.  De  Camp,  2  C.  E.  Gr.  314. 


EXECUTOR  OF  SIMMONS  v.  VANDEGRIFT  ET  AL. 


After  a  judgment  is  satisfied,  the  sheriff  has  no  authority  to  sell,  and  his  deed  can 
convey  no  interest  to  the  purchaser. 

The  legal  process  of  execution  in  the  hands  of  the  sheriff  is  not  affected,  or  the 
title  of  a  purchaser  at  the  sheriff's  sale  impaired,  by  an  attachment  issued 
against  the  plaintiff  in  the  execution,  and  levied  on  the  money  in  the  hands 
of  the  defendant,  after  the  execution  levied,  and  before  the  sale 

Mere  inadequacy  of  price,  without  fraud  or  collusion,  is  not  sufficient  to  set  aside 
a  purchase  at  sheriff's  sale. 

A  mortgage  given  for  purchase  money  on. a  sale  of  land,  by  one  defendant  in 
execution  to  his  co-defendant,  is  not,  on  the  principle  of  lien  for  purchase 
money,  entitled  to  priority  over  the  antecedent  judgment  against  both,  nor 
can  it  affect  the  title  of  a  purchaser  under  the  judgment,  although  the  pro- 
perty was  levied  on  and  sold  as  the  property  of  the  mortgagor. 

Irregularity  in  the  sheriff  selling  lands  before  goods,  without  a  written  request 
from  the  defendant,  cannot  affect  the  title  of  a  purchaser  at  the  sheriff's  sale. 


The  bill  charges,  that  in  May,  1816,  John  Vandegrift  mortgaged 
the  premises  in  question,  a  lot  of  about  six  acres,  to  Richard 
Edsall,  junior,  for  $1300.  That  this  mortgage  was  given  for  the 
purchase  money  on  a  sale  of  the  premises  by  Edsall  to  Vande- 
grift:  and  that  Edsall,  on  the  4th  of  November,  1816,  assigned 
the  mortgage  to  Henry  Simmons,  of  whose  will  the  complainant 


56  CASES  IN  CHANCERY. 

Ex'r  of  Simmons  v.  Vandegrift  et  al. 

is  executor.  That  in  May,  1813,  Robert  Morris,  as  administrator 
of  the  Earl  of  Perth,  obtained  a  judgment  against  Edsall,  under 
which  .his  property  was  sold,  and  purchased  by  Robert  Boggs,  who 
claims  title  to  the  premises  in  controversy.  That  in  February, 
1816,  Smith  and  Loring  obtained  a  judgment  in  the  common 
pleas  of  Sussex,  against  the  said  Richard  Edsall,  junior,  Richard 
Edsall.  senior,  and  John  Vandegrift.  In  November,  1816,  Kiu- 
ney  and  Fairchild  obtained  a  judgment  in  the  same  court  against 

Seward  and  John  Vandegrift:  and  in  August,  1817,  Daniel 

Borden  obtained  a  judgment  in  the  same  court  against  the  same 
defendants.  That  by  virtue  of  these  last  executions,  Daniel 
Swayze,  esq.,  sheriff  of  Sussex,  levied  on  the  mortgaged  premises 
as  the  property  of  Vandegrift,  and  in  January,  1819,  sold 
the  same  to  William  Darrah  for  eighty-five  dollars,  and  after- 
wards conveyed  the  property  to  the  purchaser.  The  bill 
farther  charges,  that  Darrah,  the  purchaser,  knew  of  the  mort- 
gage outstanding :  that  the  property  was  sold  for  a  price  grossly 
inadequate,  being  worth  from  twelve  to  fourteen  hundred  dollars  : 
that  the  judgments  were  satisfied  at  *  the  time  of  sale,  and 
that  fact  known  to  the  purchaser  ;  and  therefore,  that  the  sale 
was  fraudulent,  and  void.  The  prayer  of  the  bill  is,  that  the 
deed  from  Sheriff  Swayze  to  Darrah  may  be  declared  void,  on  the 
ground  that  the  sale  was  fraudulent,  and  under  a  satisfied  judg- 
ment ;  and  that  the  equity  of  redemption  in  the  mortgaged  premi- 
ses may  be  foreclosed,  and  the  premises  sold  to  satisfy  the  com- 
plainant's mortgage.  Vandegrift,  the  mortgagor  and  defendant  in 
the  executions,  Robert  Boggs  and  William  Darrah,  purchasers, 
Daniel  Swayze,  the  sheriff,  and  Jacob  Wilson,  his  under  sheriff, 
are  made  defendants. 

William  Darrah,  (the  real  defendant,)  in  his  answer,  admits  the 
complainant's  mortgage  ;  that  he  purchased  the  property  for  eighty- 
five  dollars,  and  received  a  deed ;  and  that  he  had  notice  of  the 
complainant's  mortgage  :  but  expressly  denies  all  fraud,  as  well 
as  all  knowledge  that  the  judgment  of  Smith  and  Loring  v.  Vande- 
grift et  al.  was  satisfied.  He  also  denies  that  the  said  judgment 
was  satisfied  at  the  time  of  the  sale,  and  insists  that  by  purchas- 
ing undei»  that  judgment,  which  was  prior  to  the  complainant's 
mortgage,  he  intended  to  acquire,  and  has  acquired,  a  title  para- 
mount to  the  mortgage. 


JULY  TERM,  1830.  57 

Ex'r  of  Simmons  v.  Vandegrift  et  al. 

PA.  Dickerson,  for  the  complainant,  said  there  was  no  con- 
troversy as  to  the  existence  and  fairness  of  the  mortgage:  the 
only  question  arose  upon  the  title  set  up  by  the  defendant;  Dar- 
rah. .  And  he  insisted  that  the  sale  by  the  sheriff  to  Darrah,  was 
fraudulent,  because  it  was  made  for  a  sum  grossly  inadequate, 
and  Darrah  purchased  knowing  of  the  complainant's  mortgage. 
That  the  sale  was  unauthorized,  as  the  sheriff  had  levied  on  per- 
sonal property  sufficient  to  satisfy  the  execution,  and  there  was  no 
request  by  the  defendants  that  the  land  should  be  first  sold.  That 
a  sale  of  the  lands  before  the  goods,  in  such  case,  was  fraudulent, 
as  against  third  persons,  whose  interests  were  affected  by  it,  and 
the  conveyance  ought  to  be  set  aside.  That  the  mortgage  was 
given  for  purchase  money,  on  the  sale  of  the  premises,  by  Van- 
degrift to  Edsall,  and  as  such  was  a  lien  on  the  property,  entitled 
to  priority  over  an  antecedent  judgment,  by  the  common  law,  of 
which  our  statute  was  declaratory.  That  the  property  was  levied 
on  and  sold  as  the  property  of  Vandegrift;  and  Darrah  had 
only  purchased  Vandegrift's  right,  which  was  subject  to  the  lien 
of  the  mortgage.  That  the  sale  by  the  sheriff  was  void  as  against 
the  mortgagee,  because  the  judgment  of  Smith  and  Loring,  (the 
only  one  prior  to  the  mortgage,)  was  satisfied  before  the  sale:  for 
proof  of  which,  he  referred  to  some  parol  evidence  taken  in  the 
cause,  and  relied  on  the  fact,  that  Dr.  Fowler  had  taken  out  an 
attachment  against  Smith  and  Loring,  the  execution  creditors, 
and  attached  the  money  in  the  hands  of  Vandegrift,  the  defendant, 
before  the  sale  by  the  sheriff  on  the  execution.  This,  he  insist- 
ed, superseded  the  execution  ;  and  the  money,  if  any  due  on  it, 
ought  to  have  been  collected  by  the  plaintiff  in  attachment.  He 
cited  the  following  authorities :  10  John.  R.  457;  1  John.  C.  R. 
402;  4  John.  C.  R.  118,  255;  15  John.  R.  458;  Rev.  L.  356, 
671,  749. 

Hornblower  and  Vanarsdale^  for  the  defendant,  Darrah,  said, 
as  there  was  no  decree  prayed  against  Swayze  and  Wilson,  the 
bill  as  against  them  must  be  dismissed.  And  they  contended, 
that  the  legal  title  acquired  by  Darrah,  could  only  be  impeached 
by  fraud.  That  all  fraud  was  denied  by  the  answer;  and  there 
was  no  evidence  to  sustain  the  charge.  That  Simmons  took  the 
mortgage  with  equitable  notice  of  the  judgment.  That  Darrah, 


58  CASES  IN  CHANCERY. 

Ex'r  of  Simmons  v.  Vandegrift  et  al. 

with  full  knowledge  of  the  mortgage  outstanding,  might  lawfully 
purchase,  and  acquire  a  paramount  title  under  the  prior  judg- 
ment, without  being  subject  to  the  imputation  of  fraud.  That 
the  doubt  which  appeared  to  have  existed  as  to  the  title  to  the 
premises,  was  sufficient  to  account  for  the  property  having  sold  at 
so  low  a  price ;  and  if  not,  that  mer€  inadequacy  of  price,  with- 
out fraud,  was  not  sufficient  to  avoid  a  sheriff's  sale.  That  any 
irregularity,  in  not  selling  the  goods  before  the  land,  was  a  ques- 
tion between  the  sheriff  and  defendant  only ;  and  could  not  affect 
the  title  of  a  bona  fide  purchaser  of  the  lands  at  the  sheriff's  sale. 
That  this  matter  was  not  charged  in  the  bill ;  and  there  was 
some  evidence,  also,  of  a  request  to  sell  the  land.  That  a  mere 
levy  on  goods  was  no  satisfaction  of  the  execution,  unless  they 
were  sufficient,  and  were  actually  taken  from  the  defendant  by 
the  sheriff:  without  this  the  sheriff  was  accountable  only  for  the 
nominal  amount  of  his  levy.  That  as  to  the  mortgage  being  a 
lien  for  purchase  money,  the  principle  did  not  apply  to  this  case, 
as  the  judgment  and  execution  were  against  both  mortgagor  and 
mortgagee.  That  there  was  no  evide'nce  that  the  attachment  at 
the  suit  of  Fowler,  was  levied  on  the  particular  moneys  due  on 
this  execution ;  and  if  it  was,  money  in  the  custody  of  the  law 
could  not  be  attached.  The  attachment  could  not  arrest  the  pro- 
ceedings of  the  sheriff  on  the  execution.  That  there  was  no 
evidence  of  the  judgment  having  been  satisfied  before  the  sale  ; 
and  if  it  had,  Darrah  had  no  notice  of  it.  That  he  was  a  pur- 
chaser for  a  valuable  consideration,  and  entitled  to  the  protection 
of  the  court.  They  referred  to,  11  John.  E.  517,  555;  7  Ves. 
jr.  34;  16  John.  R.  127;  Coxe  N.  J.  .#.39;  2  Atk.  275 ;  2 
Ves.  jr.  454. 

DlcJcerson  replied,  that  no  person,  even  without  notice,  could 
acquire  title  under  a  sheriff's  sale,  made  upon  a  satisfied  judg- 
ment. 

THE  CHANCELLOR.  The  first  question  that  presents  itself,  is, 
whether  the  judgment  was  satisfied :  if  it  was,  the  sheriff 
had  no  authority  to  sell,  and  the  deed  could  convey  no  in- 
terest to  the  purchaser.  I  have  no  difficulty  in  saying,  that  the 
testimony  of  the  complainant  has  not  satisfied  me,  that  at  the 


JULY  TERM,  1830.  59 

Ex'r  of  Simmons  v.  Vandegrift  et  al. 

time  of  the  sale  the  judgment  of  Smith  and  Loring  was  paid. 
The  alleged  statements  of  Wilson,  the  deputy  sheriff,  to  Joseph 
Edsall,  are  contradicted  by  Wilson  himself.  Wilson  declares  that 
t»e  never  said  to  Edsall  that  the  judgment  was  arranged  or  paid 
off,  and  that  the  fact  was  not  so,  but  that  at  the  time  of  the  sale 
there  was  a  balance  due  on  the  execution.  The  statement  of 
Vaudegrift  to  the  same  witness,  made  after  the  sale  of  the  pro- 
perty, that  the  execution  was  paid,  if  to  be  received  as  evidence 
at  all,  is  not 'entitled  to  much  weight.  The  testimony  of  Mr. 
Ryerson,  the  attorney  on  record,  is  greatly  to  be  relied  on.  He 
states,  that  according  to  his  calculation,  there  was  a  balance  due 
on  the  7bh  January,  1819,  (the  time  of  the  sale,)  of  $71.50,  over 
and  above  sheriff's  execution  fees.  He  states  further,  that  he 
called  on  Wilson  to  collect  and  pay  over  the  balance,  before  the 
sale.  And  Wilson  refers  to  the  same  statement,  as  having  been 
received  and  acted  on  by  him. 

Some  reliance  was  placed  by  the  defendant's  counsel  on  the  fact, 
that  an  attachment  was  taken  out  before  the  sale,  by  Samuel  Fow- 
ler, against  Smith  and  Loring,  viz.  in  1817 ;  and  that  the  sum  of 
forty  dollars  was  attached  in  the  hands  of  John  Vandegrift,  and 
fifty-two  dollars  and  fifty  cents  in  the  hands  of  Thos.  C.  Ryerson, 
Esq.  :  and  it  was  argued,  that  if  this  balance  was  attached,  the 
sheriff  could  not  go  on  and  sell  under  the  execution.  But  is  it 
certain  that  this  money,  thus  attached  in  the  hands  of  Vandegrift, 
was  the  money  due  on  the  execution  ?  If  it  >vas,  did  the  issuing 
of  the  attachment,  and  the  subsequent  levy,  pay  the  judgment,  so 
as  to  affect  the  title  of  an  innocent  purchaser?  I  think  not.  The 
legal  process  of  execution,  in  the  hands  of  the  sheriff,  could  not  be 
affected  by  the  suing  out  of  the  subsequent  attachment ;  much  less 
could  the  title  acquired  under  it  be  impaired. 

But  it  is  insisted  on  the  part  of  the  complainant,  that  the  pur- 
chase was  for  a  nominal  consideration  ;  and  that  the  purchaser 
knew,  at  the  time,  of  the  outstanding  incumbrance  in  favor  of  the 
complainant.  The  defendant,  Darrah,  admits  in  his  answer,  that 
he  knew  of  the  outstanding  mortgage;  and  alleges,  that  he  pur- 
chased with  the  express  intention  of  acquiring  a  prior  right.  This 
he  had  a  right  to  do;  and  without  giving  notice  of  such  intention 
to  the  mortgage  creditor.  Such  creditor  might  have  purchased  in 


60  CASES  IN  CHANCERY. 

Ex'r  of  Simmons  v.  Vandegrift  et  al. 

the  judgment  at  any  time;  or,  if  that  had  been  refused,  he  might, 
on  payment  of  the  money,  have  compelled  an  assignment  of  it  for 
his  own  security,  and  thereby  prevented  the  possibility  of  any 
danger  arising  from  a  sale  under  a  judgment  prior  to  his  mort- 
gage. It  is  quite  probable,  from  the  evidence,  that  the  property 
was  purchased  by  Darrah  for  less  than  its  real  value :  but  the  sale 
was  open,  fair,  and  bona  fide.  There  does  not  appear  to  have  been 
any  fraud  or  collusion  between  the  purchaser  and  the  sheriff,  or  any 
other  person  ;  and  under  such  circumstances,  a  mere  inadequacy 
of  price,  would  not  justify  this  court  iu  setting  aside  the  sale  and 
subsequent  conveyance. 

The  cases  cited  by  complainant's  counsel — 1  John.  C:  It,  402, 
and  4  John.  C.  R.  118 — are  not  applicable.  The  one  was  a  case 
of  gross  fraud  and  imposition,  and  the  court  granted  relief,  even 
against  a  judgment.  In  the  other  the  purchase  was  made  for  a 
consideration  perfectly  nominal,  on  a  stormy  day,  and  when  no 
persons  were  present  but  the  sheriff  and  the  purchaser :  yet  even 
in  that  case  the  sale  was  not  set  aside  on  the  ground  of  fraud,  but 
the  purchaser  was  decreed  to  hold  the  property  in  trust  for  the 
benefit  of  all  parties  interested  in  it. 

But  what  is  the  fact  in  relation  to  the  alleged  inadequacy  of 
price  ?  One  witness  says  the  property  was  worth,  at  the  time  of 
sale,  about  eight  hundred  or  nine  hundred  dollars.  Mr.  Ryersou 
considers  the  property  worth  at  that  time  about  eight  hundred 
dollars,  if  an  indisputable  title  could  have  been  made.  In  relation 
to  the  title,  he  says,  it  was  known  that  the  property  had  recently 
been  surveyed  by  Joseph  Sharp  as  vacant  land,  and  was  then 
claimed  by  him  or  those  holding  under  him.  It  was  also  pub- 
licly known  that  the  homestead  farm  of  Richard  Edsall  had  for- 
merly been  sold  at  sheriff's  sale,  and  purchased  by  Robert  Boggs, 
and  the  lot  in  question  was  supposed  to  be  included  in  that  sale. 
The  witness  bid  on  the  property  once  or  twice  himself:  after  he 
declined  bidding  any  more,  it  was  struck  off  to  Darrah  for  a  little 
over  eighty  dollars.  When  all  these  facts  are  considered,  instead 
of  being  a  proof  of  fraud,  it  ceases  to  be  a  matter  of  surprise  that 
so  small  a  sum  was  realized  from  the  sale. 

It  was  also  urged  by  the  complainant's  counsel,  that  the  sale 
was  fraudulent  as  to  the  mortgage  creditor,  because  the  goods  and 
chattels  of  the  defendant  in  the  execution  were  not  first  sold, 


JULY  TERM,  1830.  61 

Ex'r  of  Simmons  v.  Vandegrift  et  al. 

and  applied  to  the  payment  of  the  execution.  If  the  lands  were 
sold  before  the  goods,  it  was  irregular,  unless  there  was  a  written 
request  to  that  effect  given  by  the  defendant ;  and  of  this  the  evi- 
dence is  not  satisfactory.  But  such  irregularity  cannot  affect  the 
sheriff's  deed,  unless  the  purchaser  had  notice  of  it;  which  in 
this  case  is  neither  alleged  or  proved.  Den  v.  Lacony,  Coxe  N. 
J.  It.  39 ;  and  in  Deforest  v.  Lute,  16  John.  R.  127 ;  it  was 
held  by  the  court,  that  a  bona  fide  purchaser  of  lands  at  sheriff's 
sale  has  no  concern  with  the  fact,  that  the  sheriff  has  omitted  his 
duty  in  not  first  selling  the  goods  and  chattels. 

There  is  one  more  point  that  requires  to  be  noticed.  The  com- 
plainant alleges  that  the  mortgage  given  by  Vandegrift  to  Edsall, 
and  by  Edsall  assigned  to  Simmons,  was  given  for  a  part  of  the 
purchase  money  of  the  property  on  which  it  was  a  lien  ;  and 
therefore  that  it  is  to  be  preferred,  and  the  sale  is  void  as  against 
that  mortgage.  This  appears  to  me  altogether  distinct  and  aside 
from  the  equity  set  up  in  the  complainant's  bill.  It  is  no  where 
alleged  in  the  bill  that  the  mortgage  was  given  for  the  purchase 
money :  nor  is  it  claimed,  that  by  reason  of  that  fact,  the  mort- 
gage is  entitled  to  priority.  The  complainant  put  himself  before 
the  court,  upon  the  broad  ground,  that  the  judgments  were  paid 
and  satisfied  ;  that  this  was  known  to  the  purchaser  and  sheriff;  and 
that  they  effected  the  sale  fraudulently,  to  injure  the  complainant's 
title.  He  should  not  depart  too  far,  from  the  case  which  the  de- 
fendants were  called  on  to  answer.  Still,  as  n€L.objection  has-been 
interposed  by  the  defendants'  counsel,  in  the  argument,  I  shall 
raise  no  difficulty  to  a  full  investigation  of  the  whole  matter,  espe- 
cially as  this  part  of  the  case  was  very  strongly  pressed. 

The  judgment  under  which  Darrah,  the  purchaser,  claims,  was 
obtained  in  the  term  of  February,  1816,  in  the  common  pleas  of 
Sussex,  by  Smith  and  Loring,  against  Richard  Edsall,  junior, 
Richard  Edsall,  and  John  Vandegrift.  Execution  issued,  return- 
able to  May  term,  1816.  In  the  same  month  of  May,  Vandegrift 
mortgaged  to  Edsall  the  property  in  dispute.  It  appears  by  the 
testimony  of  Joseph  Edsall,  that  Richard  Edsall  conveyed  the 
property  to  Vandegrift,  and  that  the  making  of  the  deed  from 
Edsall  to  Vandegrift,  and  of  the  mortgage  from  Vandegrift  to 
Edsall,  were  simultaneous  acts;  and  that  the  mortgage  was  to 
secure  part  of  the  purchase  money.  The  property  was  levied  ou 


62  CASES  IN  CHANCERY. 


Ex'r  of  Simmons  v.  Vandejmft  et  al. 


as  the  property  of  Vanclegrift;  from  which  circumstance,  it  is 
reasonable  to  suppose,  the  levy  was  not  made  until  after  the  sale  . 
and  conveyance  from  Edsall  to  Vandegrift.  Admitting  it  then  to 
be  true,  in  the  fullest  extent,  as  contended  for,  that  according  to 
the  common  law,  independent  of  and  prior  to  our  statute  on  the 
subject,  the  purchase  money  was  a,  lien  on  the  property  sold,  to 
the  .exclusion  of  any  incumbrances  against  the  purchaser ;  how 
can  the  present  case  possibly  be  affected  by  it?  Edsall  the  vendor 
was  a  co-defendant  with  Vaudegrift  the  purchaser.  The  proper- 
ty was  bound  by  the  judgment,  in  the  hands  of  Edsall,  before 
the  sale,  as  well  as  in  the  hands  of  Vandegrift  after  the  sale.  The 
sale  did  not  affect  the  judgment  lien.  The  mortgage  could  not 
impair  the  rights  of  third  persons.  If  Edsall  had  not  sojd  the 
property,  he  could  not,  by  the  confession  of  a  judgment,  the 
execution  of  a  mortgage,  or  in  any  other  way,  have  divested  it 
of  the  judgment  lien.  .  Nor  can  it  be  affected  by  a  sale.  It  would 
be  strange  indeed,  if  a  debtor,  by  a  simple  conveyance  of  his  real 
estate,  and  taking  a  mortgage  for  the  consideration  money,  should 
be  able  to  gain  a  priority  over  a  prior  bona  fide  judgment  creditor, 
and  utterly  destroy  his  lien. 

But  it  is  said  that  the  sheriff  levied  on  it  as  the  property  of 
Vandegrift :  that  this  must  have  been  after  the  sale,  and  conse- 
quently, after  the  mortgage:  that  Darrah  only  purchased  the 
right  of  Vandegrift,  and  that  right  was  subject  to  the  mortgage. 
This  is  certainly  true ;  and  it  is  equally  true,  that  both  were  sub- 
ject to  the  prior  judgment.  The  argument  is,  that  at  the  time  of 
the  judgment,  Vandegrift  was  not  seized  of  this  property  :  he  had 
no  right  in  it :  the  right  was  in  Edsall  ;  and  that  the  right  which 
Vandegrift  acquired,  was  a  right  subject  to  the  mortgage  for  the 
purchase  money :  that  this  right  was  all  the  sheriff  could  sell  un- 
der his  levy,  and  all  that  Darrah  could  purchase.  The  argument 
is  plausible,  but  the  conclusion  is  unsound  and  full  of  injustice. 
If  the  lot  had  been  levied  on  before  the  sale  from  Edsall  to  Van- 
degrift, and  as  the  property  of  Edsall,  and  been  sold  by  the  sher- 
iff afterwards,  as  Edsall's  property,  there  could  have  been  no 
room  for  doubt.  This  might  have  been  done  :  and  even  after  the 
conveyance  of  the  property  from  Edsall  to  Vandegrift,  the  sheriff 
might  have  levied  on  it  as  Edsall's  property,  and  probably  in 
strictness  ought  to  have  done  so.  But  this  was  not  done.  Can 


JULY  TERM,  1830.  63 


Wilson  v.  Hillver  and  Dunn. 


Edsall,  or  those  claiming  under  him,  now  come  into  this  court, 
and  upon  the  common  law  doctrine  of  lien,  actually  supersede 
the  incumbrance  that  was  on  the  property  before  the  supposed  lien 
could  have  existed  ?  Would  it  be  equitable  ?  Would  it  be  just? 
If  Edsall  had  not  been  a  co-defendant  in  the  original  judgment, 
a  different  case  would  have  been  presented  ;  and  the  question 
might  then  have  been  raised,  how  far  the  mortgage,  being  for  the 
purchase  money,  was  to  be  protected  against  an  anterior  judg- 
ment outstanding  against  the  purchaser.  But  that  question  can* 
not  arise  here. 

Upon  the  whole  matter,  I  am  of  opinion  that  the  complainant 
has  no  claim  against  the  defendants.     Let  the  bill  be  dismissed. 

CITED  in  Mercereau  v.  Prest,  2  Gr.  Ch.  463  ;  Wintermute's  Ex.  v.  Snyder's  Ex., 
Id.  496  ;  Marlatl  v.  Warwick  &  Smith,  3  C.  E.  Gr.  Ill ;  Nichols  v.  Disner,  5 
Dutch.  295  ;  Nichols  v.  Dissler,  2  Vr.  465. 


WILSON  v.  HILLYER  AND  DUNN. 


A  witness,  who  may  be  responsible  as  an  endorser  on  one  or  more  of  several 
notes,  is  a  competent  witness  between  two  other,  endorsers  of  the  same 
notes,  against  whom  judgments  had  been  obtained,  and  their  respective  prop- 
erties sold,  subject  to  redemption  ;  as  to  the  terms  of  a  subsequent  agree- 
ment between  them,  concerning  the  re-sale  of  the  property  :  his  responsibility 
as  an  endorser  does  not  create  an  interest  in  the  event  of  that  suit. 

When  there  is  nothing  in  the  suit  to  change  the  liability -^f  the  witness  ;  or  when 
the  change,  if  any,  is  only  in  the  person  to  whom  the  witness  is  answerable, 
and  his  responsibility,  in  all  events  of  the  cause,  is  equal ;  the  witness  is  not 
disqualified. 

The  declaration  of  one  party,  in  the  absence  of  the  other,  after  an  agreement 
made,  touching  the  terms  of  that  agreement,  is  not  competent  evidence  for 
the  party  making  the  declaration. 

It  is  not  sufficient  for  a  defendant,  claiming  to  be  a  bona  fide  purchaser  for  valua- 
ble consideration  without  notice,  to  deny  personal  knowledge  of  the  matters 
charged,  without  denying  notice,  before  his  contract.  He  must  deny  notice, 
even  though  it  be  not  charged  ;  and  he  must  deny  it  positively,  and  not. 
evasively ;  he  must  even  deny  fully,  and  in  the  most  precise  terms,  every 
circumstance  from  which  notice  could  be  inferred. 


James  Wilson,  the  complainant,  in  his  bill,  states,  that  he 
became  indebted  to  the  State  Bank  at  New-Brunswick,  and  other 
banks,  to  a  large  amount,  as  endorser  for  one  Joseph  Demund. 
That  Demund  having  failed  to  pay  the  notes,  judgment  was  ob- 


64  CASES  IN  CHANCERY. 

Wilson  v.  Hillyer  and  Dunn. 

tained  against  the  complainant  by  the  bank  ;  and  execution 
being  issued,  his  property,  including  a  farm  in  the  county  of  War- 
ren, was  sold,  The  bank  became  the  purchaser,  and  received  a 
deed  from  the  sheriff.  That  the  president  of  the  bank,  who  at- 
tended the  sale  and  bid  off  the  farm,  told  the  complainant  he 
might  remain  in  possession,  and  if  he  could  find  a  purchaser  for 
a  larger  sum  than  was  due  to  the  bank,  he  should  have  the  ex- 
cess, or  might  redeem  by  paying  to  the  bank  their  amount.  That; 
the  complainant  remained  in  possession  about  two  years,  when 
William  Hillyer,  one  of  the  defendants,  proposed  to  purchase  the 
farm,  "and  agreed  and  promised  the  complainant,  and  the  said 
president  and  directors,  that  upon  a  deed  being  given  to  him  for 
the  property,  he  would  pay  and  satisfy  the  amount  of  the  judg- 
ment against  the  complainant,  and  he  would  pay  the  complain- 
ant, in  addition  thereto,  the  sum  of  one  thousand  dollars  :  upon 
which  terms  the  complainant  agreed  the  farm  might  be  con- 
veyed to  him."  That  Hillyer  has  not  paid,  and  now  refuses  to 
pay,  the  thousand  dollars,  which  was  to  have  been  paid  at  the 
delivery  of  the  possession  of  the  premises  to  him.  That  Hillyer 
has  since  conveyed  the  farm  to  Jacob  Dunn,  the  other  defen- 
dant ;  who  is  seeking,  by  action  of  ejectment,  to  recover  it  from 
the  complainant.  And  that  Dunn,  before  his  purchase,  knew  of 
the  aforesaid  agreement  to  pay  the  said  sum  of  money  to  the 
complainant.  The  bill  seeks  to  recover  the  thousand  dollars,  and 
prays  for  an  injunction,  &c. 

The  defendants  filed  separate  answers.  Hillyer,  in  his  an- 
swer, admits  the  endorsements  of  the  complainant,  and  the 
judgment,  and  execution,  and  sale  of  the  complainant's  property  ; 
and  states  that  he  was  also  an  endorser  for  Demund,  and  his  farm 
was  sold  under  like  circumstances,  and  at  the  same  time,  and  also 
purchased  by  and  conveyed  to  the  bank.  He  states,  he  believes 
it  to  be  true  that  they  (the  bank)  permitted  the  said  complainant 
to  remain  in  possession  of  the  said  property  that  he  formerly 
owned,  and  authorized  him  to  contract  to  sell  the  same,  and  agreed 
to  give  him  the  surplus  after  satisfying  their  demand  ;  and  that  the 
said  bank  made  the  same  terms  with  him  (Hillyer.)  That  after 
some  time,  and  after  the  complainant  had  refused  to  make  exer- 
tion to  raise  money  to  pay  his  proportion  of  the  debt  to  the 


JULY  TERM,  1830.  Gf> 

Wilson  v<  Hillyer  and  Dunn. 

bank,  he  disposed  of  his  farm  for  four  thousand  dollars,  and  ar- 
ticled with  the  bank  for  the  complainant's  farm,  in  consideration 
of  paying  to  them  the  balance  that  would  be  due  to  them  after 
the  said  four  thousand  dollars.  That  after  he  returned  from  New- 
Brunswick,  he  informed  the  complainant  what  he  had  done ;  and 
it  was  agreed  that  the  complainant  should  occupy  the  premises 
one  year,  paying  rent,  and  at  the  end  of  the  year  give  to  the  de- 
fendant peaceable  possession,  and  a  quit  claim,  executed  by  him- 
self and  wife,  so  as  to  bar  her  dower ;  and  the  defendant  to  pay 
the  complainant  four  hundred  dollars.  That  at  the  end  of  the 
year  he  went  to  the  complainant's  house,  in  order  to  pay  him  ac- 
cording to  the  contract,  and  to  receive  from  him  the  conveyance ; 
when  the  complainant  refused  unless  the  defendant  would  pay 
him  one  thousand  dollars,  which- he  refused.  And  the  defendant 
denies  "  that  there  was  any  agreement  between  him  and  the  com- 
plainant, for  the  payment  of  the  sum  of  one  thousand  dollars  to 
him,  the  said  Wilson,  or  .that  there  was  any  such  agreement 
made  by  this  defendant  with  the  officers  of  the  bank,  for  the 
benefit  of  the  complainant." 

The  answer  of  the  other  defendant,  Dunn,  will  be  particularly 
adverted  to  hereafter. 

Upon  the  filing  of  these  answers,  the  injunction  which  had 
issued  on  the  filing  of  the  bill  was  dissolved,,  because  the  whole 
equity  of  the  bill  was  denied. 

Depositions  were  taken,  and  the  cause  set  down  for  hearing. 
The  Chancellor  having  been  of  counsel  with  one  of  the  parties, 
Charles  Ewing,  Esquire,  Chief  Justice,  was  called  on  to  hear 
the  case,  and  advise  the  Chancellor.  The  cause  was  submitted 
on  written  arguments. 

Chetwood,  solicitor  of  complainant :  Southard,  of  counsel. 
• ,  counsel  for  the  defendants. 

The  Chief  Justice  reported  his  opinion,  which  at  this  term  was 
delivered  by 

THE  CHANCELLOR.  The  first  subject  of  enquiry  from  the 
evidence,  is,  upon  what  terms  Hillyer  purchased  of  the  bank  the 

E 


66  CASES  IN  CHANCERY. 

Wilson  v.  Hillyer  and  Dunn. 

farm  which  had  formerly  belonged  to  Wilson :  or,  in  other  words, 
whether  Hillyer  did  undertake  to  pay  the  sum  of  one  thousand 
dollars  to  Wilson,  as  part  of  the  consideration  of  the  conveyance  of 
the  farm  to  him  by  the  bank,  and  of  the  "surrender  to  him  of  the 
possession  by  Wilson. 

The  farms  of  both  Hillyer  and  Wilson  were  purchased  by  the 
bank  for  prices  far  less  than  their  real  value.  The  bank  very 
honorably  assured  them,  that  whenever  the  farms  could  be 
again  sold,  they  should  reap  the  benefit  of  whatever  might  be 
obtained  beyond  the  amount  due  to  the  bank.  Hillyer  contracted 
with  Egbert  for  the  sale  of  his  farm  for  four  thousand  dollars; 
which,  from  all  that  appears  or  is  said,  I  presume  we  may  take 
to  have  been  at  that  time  its  fair  price.  Hillyer  contracted  for 
the  purchase,  also,  of  the  other  fa.rm.  Thus  far  there  is  no  dU- 
pute.  But  the  terms  of  this  contract  are  represented  in  a  widely 
different  manner  by  the  parties,  in  their  bill  and  answer.  Hillyer, 
while  he  peremptorily  denies  that  there  was  any  agreement  be- 
tween him  and  Wilson  for  the  payment  to  the  latter  of  the  sum 
of  one  thousand  dollars,  or  that  there  was  any  such  agreement  made 
by  him  with  the  officers  of  the  bank  for  the  benefit  of  Wilson,  af- 
ter stating,  that  upon  the  sale,  the  bank  permitted  Wilson  to  re- 
main in  possession,  and  authorized  him  to  contract  to  sell  the  farm, 
and  agreed  to  give  him  the  surplus  after  satisfying  their  demand, 
admits  that  before  the  conveyance  by  the  bank  to  him,  there  was 
an  agreement  made  between  him  and  Wilson,  whereby  Wilson 
was  to  occupy  the  premises  for  one  year,  paying  rent,  and  then  to 
give  Hillyer  peaceable  possession,  and  a  quit  claim  executed  by 
himself  and  wife  so  as  to  bar  her  dower;  and  Hillyer  was  to  pay 
Wilson  thereupon  the  sum  of  four  hundred  dollars.  The  denial 
of  the  answer  of  Hillyer,  is  therefore  to  be  taken  to  extend  rather 
to  the  terms  of  the  agreement,  or  the  amount  to  be  paid  as  alleged 
in  the  bill,  than  to  the  fact  of  the  making  of  an  agreement,  or  an 
engagement  to  make  a  payment  to  Wilson  on  account  of  the  farm  ; 
for  the  latter  he  expressly  avows. 

Independent  however  of  any  aid  from  the  answer,  and  in  op- 
position to  all  the  weight  to  which,  on  the  doctrine  of  the  court  of 
chancery,  it  would  be  entitled,  if  it  contained  a  full  and  unequi- 
vocal denial,  the  evidence  of  the  complainant  satisfactorily  shows 
an  engagement  on  the  part  of  Hillyer  to  pay  Wilson  the  sum  of 


JULY  TERM,  1830.  67 

Wilson  v.  Hillyer  and  Dunn. 

one  thousand  dollars ;  that  this  payment  was  part  of  the  price  or 
purchase  money  of  the  farm  ;  and  that  the  promise  of  Hillyer  to 
make  the  payment  was  founded  upon  a  sufficient  and  legal  con- 
sideration. The  testimony  of  the  president  and  cashier  of  the 
bank,  and  of  two  other  witnesses,  is  express  to  this  point.  Daniel 
W.  Disborough,  th^  cashier,  says,  "  The  bank  afterwards  sold  the 
farm  of  Wilson  to  Hillyer.  The  terms  of  sale  were,  that  Hillyer 
was  to  pay  Wilson  one  thousand  dollars,  upon  Wilson's  wife 
relinquishing  her  right  of  dower,  over  and  above  the  lien  of  the 
bank.  Egbert  was  to  pay  four  thousand  dollars  to  the  bank  for 
Hi  1  Iyer's  farm,  and  Hillyer  was  to  pay  the  bank  their  balance, 
supposed  to  be  fifteen  or  sixteen  hundred  dollars,  and  to  pay  Wil- 
son the  sum  of  one  thousand  dollars.  The  contract  was  entered 
into  in  the  presence  of  the  deponent.  The  sum  of  one  thousand 
dollars  was  to  be  paid  when  Mrs.  Wilson  released  her  right 
of  dower,  and  Mr.  Wilson  his  possession."  Charles  Smith,  the 
president  of  the  bank,  testified,  "  that  upon  a  meeting  of  the  par- 
ties at  the  bank,  (in  the  spring  of  1822,)  he  mentioned  particu- 
larly in  the  presence  of  all  the  gentlemen  there,  Hillyer  among 
them,  that  Hillyer  was  to  pay  Wilson  one  thousand  dollars  over 
and  above  all  his  covenants  and  engagements  to  the  bank  ;  to 
which  Hillyer  assented  ;  and  it  was  the  express  understanding 
of  the  parties  at  the  time  ;  and  in  consequence  of  these  express 
declarations,  Wilson  consented  that  the  deed  should  be  made 
out,  and  it  was  made  accordingly  to  Egbert  and  Hillyer ;  to 
Egbert  a  deed  for  one  farm,  and  to  Hillyer  for  Wilson's.  The 
thousand  dollars  was  to  be  paid  the  next  spring,  at  the  usual 
time  of  leasing  farms,  and  upon  that  sum  being  paid,  Wilson 
was  to  give  it  up."  Robert  Thompson  was  also  examined  as  a 
witness.  To  his  testimony  an  exception  was  made  at  the  exami- 
nation, on  the  part  of  the  defendant.  It  has  not  been  insisted  up- 
on in  the  brief  of  his  counsel,  nor  do  I  see  any  support  for  it. 
Responsibility  as  an  endorser,  if  it  exists,  will  not  create  an  interest 
in  the  event  of  this  cause ;  and  although  the  facts  respecting  it 
are  so  darkly  exhibited  as  to  render  reasoning  on  the  subject  diffi- 
cult, it  seems  probable  there  is  nothing  to  change  his  liability,  or 
that  any  change  which  may  occur,  or  has  occurred,  is  only  in  the 
person  to  whom  he  may  be  answerable.  If  his  responsibility  in 
all  events  of  the  cause  is  equal,  he  has  no  disqualifying  interest. 


68  CASES  IN  CHANCERY. 

Wilson  v.  Hillyer  and  Dunn. 

Thompson  testifies,  in  the  first  place,  of  an  interview  prior  to  the 
negotiation  with  the  bank  for  the  purchase  of  the  farm.  He  says, 
"  Hillyer  and  Wilson  called  to  see  him.  Hillyer  informed  him  he 
had  spoken  to  Wilson  upon  the  subject,  and  that  he  had  agreed 
with  Wilson  to  pay  him  one  thousand  dollars."  Thompson 
enquired  of  Wilson  if  that  was  so,  and  he  said  it  was.  "  Hillyer 
informed  him  he  had  agreed  upon  the  sale  of  his  farm  to  Egbert 
for  four  thousand  dollars,  and  mentioned  the  day  on  which  they 
•were  to  meet  in  New-Brunswick  to  make  the  proposition  to  the 
bank."  Thompson  went  to  New-Brunswick  at  the  request  of 
Hillyer.  A  meeting  of  the  directors  of  the  bank  was  called.  At 
the  request  of  Hillyer,  and  in  his  presence,  Thompson  made  to 
them  this  proposition : — "  He  wished  them  to  make  a  deed  of 
Hillyer's  farm  to  Egbert,  and  Egbert  would  pay  or  secure  to 
them  four  thousand  dollars ;  to  make  a  deed  of  Wilson's  farm 
to  Hillyer,  and  Hillyer  would  pay  them  five  hundred  dollars, 
and  secure  the  remainder  by  mortgage."  The  president  then 
asked  what  Wilson  would  say  to  that.  Thompson  informed  them 
that  Hillyer  had  agreed  to  give  to  Wilson  one  thousand  dollars, 
•which  Wilson  had  agreed  to  take,  and  in  that  case  Wilson  was 
•willing  that  the  bank  should  make  to  Hillyer  a  deed  for  his  farm. 
The  president  said  the  proposal  was  a  reasonable  one,  and  the 
bank  would  agree  to  it.  James  Egbert,  the  person  who  purchased 
Hillyer's  farm,  called  as  a  witness  by  the  complainant,  testified, 
that  "he  was  present  in  March,  1822,  when  the  agreement  was 
made  with  the  bank.  Hillyer  then  stated  he  was  willing  to  pay 
the  thousand  dollars  to  Wilson,  provided  they  would  convey  the 
farm  to  him.  About  the  middle  of  April,  the  witness  and 
Hillyer  came  to  New-Brunswick  to  fulfil  the  contract,  and  there 
they  met  with  Wilson.  Before  the  deed  was  given,  the  witness 
stated  to  Wilson  that  Hillyer  had  agreed  to  give  him  one  thou- 
sand dollars  and  clear  him  of  the  bank.  The  president  of  the 
bank  distinctly  stated,  in  the  presence  of  both  Hillyer  and  Wil- 
son, that  Hillyer  was  to  pay  the  thousand  dollars  to  Wilson,  and 
Hillyer  assented  to  it.  The  deeds  were  then  made  out  and  exe- 
cuted." 

Let  us  look  farther  into  the  case,  to  ascertain  if  there  be  any 
thing  to  overcome,  or  to  render  doubtful,  the  united  and  con- 
sistent testimony  of  four  respectable  witnesses.  If  there  be,  it 


JULY  TERM,  1830.  69 


Wilson  v.  Hillyer  and  Dunn. 


arises,  1st,  from  the  article  of  agreement ;  or,  2d,  from  the  testi- 
mony of  James  Vansyckel,  a  witness  examined  by  the  defendants ; 
or,  3d,  because  Thompson  was  to  pay  part  of  the  thousand  dol- 
lars. 

1.  The  article  of  agreement  is  between  the  bank  and  Egbert 
and  Hillyer,  for  the  sale  and  purchase  of  the  two  farms,  and  sets 
forth  the  terms,  so  far  as  the  bank  was  concerned,  but  is  totally 
silent  as  to  any  payment  to  be  made  by  Hillyer  to  Wilson.     The 
scrivener  by  whom   it  was  drawn,  may  have  supposed,  as  it  was 
between  the  bank  on  the  one  part,  and  Hillyer  and  Egbert  on 
the  other,  it  was  enough  to  state  the  payments  to  be  made  to  the 
bank ;  and  that  as  Wilson  was  not  a  party,  mention   of  the  pay- 
ment to  be  made  to  him  was  unimportant;  or  some  other  reason 
may  have  existed  ;  about  all  which  it  is  useless  to  indulge  in  con- 
jecture, since  the  fact  is  certain,  and  must  therefore  be  followed 
by  its  legitimate  consequences,  that  there  is  nothing  said  in  it  of 
any  payment  to  be  made  to  Wilson.     Some  of  its  contents  may 
be,  perhaps,  as  difficult  to  explain  as  its  omissions ;  such  as  the 
introduction  into  the  instrument  of  Thompson  as  a  party,  which, 
according  to  one  of  the  witnesses,  the  scrivener  who  drew  it  could 
not  afterwards  account  for,  or  why,  having   been   introduced,  he 
was  not  called  on   to  execute  it.     There  is,  however,  nothing  in 
the  article  inconsistent  with  the  alleged  engagement  of  Hillyer  to 
Wilson;  and  the   mere  silence  of  the  article^cannot  serve  to  dis- 
prove a  fact  to  which  four  witnesses  have  unitedly  testified.     Wily 
son,  who  was -not  only  not  a  party  to   the   article,  but  not  even 
present  at  its  execution,  cannot  be  prejudiced  by  the  omission.  And 
if  the  omission  cannot  prevail  to  disprove  the  existence  of  such  a 
promise  on  the  part  of  Hillyer,  it  cannot  otherwise  avail,  since  the 
promise  was  binding,  especially  as  the  conveyance  of  the  farm  was 
completed  and  delivered  to  him. 

2.  The  testimony  of  Vansyckel   shows  a  negotiation    between 
Hillyer  and  Wilson,  but  no  actual   agreement.     Terms   were  in 
some  degree  discussed.     It  seems  to  have  been  the  inception  of 
the  negotiation ;  was  merely  a  proposition  on  the  part  of  Hillyer, 
no  determination  being  made  by  Wilson  ;  which,  on  the  contrary, 
was  expressly  postponed  in  order  that  Wilson — who  said  it  was 
new  to  him,  he  had  not  thought  of  it,  and  did   not  know  what 


70  CASES  IX  CHANCERY. 

Wilson  v.  Hillyer  and  Dunn. 

to  say — might  reflect  upon  it  and  consult  his  friends.  Tin's  testi- 
mony may  serve  to  render  it  probable  that  an  agreement  was  made, 
and  that  Hillyer  did  engage  to  pay  money  to  Wilson  on  account  of 
the  purchase  of  the  farm ;  but  standing  alone  it  certainly  would 
not  prove  that  any  agreement  was  actually  made,  nor  ought  it  to 
have  any  weight  to  show  the  terms  of  the  agreement,  in  opposition 
to  witnesses  who  testify  that  they  had  the  agreement  and  its  terms 
from  the  mouths  of  the  parties.  / 

3.  I  find  nothing  in  the  evidence  to  show,  that  by  the  agree- 
ment of  the  parties,  six  hundred  dollars  of  the  one  thousand  dollars 
was  to  have  been  paid  by  Thompson  to  Wilson.  Hillyer  makes 
no  such  allegation  in  his  answer.  No  one  of  the  four  witnesses 
mention  any  such  agreement,  but  on  the  contrary  all  explicitly 
state  that  the  whole  was  to  have  been  paid  by  Hillyer.  The  pre- 
sident, on  cross-examination,  to  this  point  said,  that  "he  knew 
of  no  understanding  that  Mr.  Thompson  was  to  pay  any  part 
of  the  money."  Thompson  says,  that  "when  he  spoke  of  any 
sum  that  he  considered  himself  bound  to  pay  to  Wilson,  he  had 
no  reference  to  the  one  thousand  dollars  which  Hillyer  was  to 
pay  to  Wilson,  nor  had  he  any  intention  that  it  should  have 
any  thing  to  do  with  it."  The  cross-examination  of  James  Eg- 
bert, if  competent — which  I  am  inclined  to  deny,  because  he  relates 
a  declaration  of  Hillyer,  in  the  absence  of  Wilson,  and  after  the 
agreement  was  made,  if  ever  made — by  no  means  serves  to  show 
that  the  original  agreement  was  different  from  what  is  represent- 
ed by  Egbert  himself  and  the  other  witnesses  ;  nor  that  Thomp- 
son, by  the  original  agreement,  was  responsible  for  any  part  of 
the  thousand  dollars;  nor  that  Hillyer  was  responsible  for  any 
less  than  that  sum.  It  serves  to  show,  from  Hillyer's  own  words, 
that  there  was  an  agreement  for  one  thousand  dollars.  It  shows 
something  more;  for  it  is  scarcely  credible  that  Hillyer  could  have 
used  the  language  imputed  to  him,  if  by  the  terms  of  the  original 
agreement  he  was,  as  he  alleges  in  his  answer,  to  pay  but  four 
hundred  dollars.  If  his  agreement  extended  to  that  sum  only, 
how  could  he  say  "  he  would  have  but  four  hundred  dollars  of 
the  thousand  dollars  to  pay,  for  that,"  or  in  other  words,  because, 
"  six  hundred  dollars  was  to  be  paid  by  Thompson."  Whether 
that  sum  was  to  have  been  paid  by  Thompson,  or  any  body,  or 


JULY  TERM,  1830.  71 

Wilson  v.  Hillyer  and  Dunn. 

nobody,  could  have  had  no  effect  on  his  engagement,  if  it  was 
for  four  hundred  dollars  only.  The  deposition  of  James  Van- 
syckel  shows  no  undertaking  on  the  part  of  Thompson  to  pay 
any  part  of  the  thousand  dollars ;  nor  does  it  show  any  agreement 
between  Hillyer  and  Wilson,  that  Wilson  should  trust  to  Thomp- 
son for  any  part  of  the  consideration  money  of  the  purchase  which 
Hillyer  proposed  to  make. 

From  this  view  of  the  subject,  I  deem  it  unnecessary  to  in- 
quire into  the  responsibility  of  Thompson  as  endorser;  and  so 
deficient  is  the  testimony  in  respect  to  the  facts  on  which  his  lia- 
bility, if  any,  depends,  that  it  is  most  advisable  to  enter  into  no 
speculations  on  the  subject. 

Against  William  Hillyer,  then,  the  evidence  in  the  cause  ap- 
pears to  me  fully  to  establish  the  right  of  the  complainant  to 
relief. 

If  the  engagement  of  Hillyer  to  pay  the  sum  of  one  thousand 
dollars,  as  a  part  of  the  consideration  money  of  the  premises,  is 
proved,  it  can  be  of  little  avail  to  enquire  whether  his  bargain. is 
a  hard  one  or  otherwise,  since  no  fraud  or  imposition  on  him  is 
alleged,  and  he  must  therefore  fulfil  his  contract,  and  equity  can- 
not relieve  him  against  it  or  permit  him  to  abandon  it  even  if 
onerous.  The  result  to  which  we  are  brought  by  the  evidence  as 
to  the  agreement,  might  indeed  be  more  satisfactory,  if  upon  an 
enquiry  we  should  find  that  Hillyer  has  no  reason  to  complain  of 
his  bargain.  But  the  light  from  the  evidence  upon  this  matter  is 
too  glimmering  and  feeble  to  enable  us  even  to  grope  our  way. 
We  have  some  proof,  indeed,  of  the  amount  due  from  both  to  the 
bank  ;  but  I  find  it  impracticable  to  ascertain  the  amount  of  their 
respective  responsibilities.  Beth,  there  is  reason  to  believe,  were 
not  endorsers  on  all  the  notes;  and  whether  they  were  on  any, 
or  on  which,  joint  endorsers,  so  as  to  be  as  between  themselves 
equally  liable;  or  separate  endorsers,  so  as  to  be  answerable  in 
the  order  of  endorsement ;  neither  the  allegations  nor  proofs  do 
satisfactorily  show.  In  the  brief  of  the  counsel  of  the  defendants, 
it  is  said,  that  "in  truth  and  equity  the  amount  due  from  Wilson 
was  one  thousand  dollars  more  than  the  amount  due  from 
Hillyer."  It  may  be  so,  but  I  cannot  find  in  the  proof,  support 
for  the  position.  The  counsel  relies  on  what  is  said  in  Hillyer's 


72  CASES  IN  CHANCERY. 


Wilson  v.  Hillyer  and  Dunn. 


answer,  to  show  that  \Vilson  was  the  first  endorser  on  one  of  the 
notes;  but  this  allegation  of  the  answer  is  not  followed  up  by  any 
proof;  and  if  it  be  true  that  Hillyer  was  not,  as  Wilson  was,  an 
endorser  on  another  note  of  one  thousand  dollars ;  yet  of  how 
many  of  the  notes  Hillyer  may  have  been  the  first  endorser,  we 
have  no  proof.  If  they  stood  equally  indebted  to  the  bank,  and 
"  the  interest  which  Wilson  had  in  the  farm  that  Hillyer  bought 
of  the  bank,  was  worth  as  much  as  the  farm  that  Egbert 
bought,"  as  testified  by  Thompson,  say  four  thousand  dollars ; 
then  Hillyer,  having  satisfied  to  the  bank,  say  five  thousand  se- 
ven hundred  and  seventy-five  dollars,  and  having  the  Wilson 
farm,  say  four  thousand  dollars,  would  in  fact  have  advanced  but 
one  thousand  seven  hundred  and  seventy-five  dollars,  and  Wilson 
four  thousand  dollars  ;  so  that  one  thousand  dollars  paid  by  Hillyer 
to  Wilson  would  not  render  their  losses  equal.  It  would,  how- 
ever, be  of  little  profit  to  spend  further  time  on  this  topic,  as  we 
are  able  to  find  support  for  conjecture  only ;  and  as  a  mere  con- 
jecture I  would  hazard  the  question,  whether,  if  the  bank  recover 
any  thing  in  the  suit  said  to  have  been  brought  against  Thomp- 
son, they  will  not  hold  it  for  the  benefit  of  Hillyer,  in  case  he 
should  have  discharged  all  the  responsibilities  of  himself  and 
Wilson  to  the_bank? 

Our  next  inquiry  respects  the  case  of  Jacob  Dunn.  He  is  a 
purchaser  of  the  farm  from  William  Hillyer.  He  is  charged  in 
the  bill  with  knowledge,  before  his  purchase,  of  the  agreement  al- 
leged by  the  complainant.  In  his  answer  he  says,  "  he  believes  it 
to  be  true  that  William  Hillyer  afterwards  purchased  the  said 
property  of  the  said  State  Bank  at  New  Brunswick ;  but  this 
defendant  has  no  knowledge  of  any  contract  on  the  part  of  the 
said  William  Hillyer  with  the  said  James  \Vilson,  to  pay  him 
the  sum  of  one  thousand  dollars,  over  and  above  the  amount 
paid  to  the  bank,  nor  of  any  such  agreement  being  made  with 
the  bank  for  the  benefit  of  the  said  James  Wilson."  The  answer  is 
not  full  and  explicit,  nor  directly  responsive  to  the  charge.  He 
evidently  refers  to,  and  intends  to  deny,  personal  knowledge  of 
the  contract  or  agreement.  He  does  not  deny  notice  of  it  before 
his  purchase;  and  his  allegation  maybe  satisfied  and  be  true 
even  with  notice,  if  he  had  no  such  personal  knowledge.  The 


JULY  TERM,  1830.  73 

Wilson  v.  Hillyer  and  Dunn. 

rule  in  equity  is  thus  laid  down  by  Chancellor  Kent : — "  If  a  pur- 
chaser wishes  to  rest  his  claim  on  the  fact  of  being  an  innocent 
bona  fide  purchaser,  he  must  deny  notice,  even  though  it  be  not 
charged,  and  he  must  deny  it  positively  and  not  evasively ;  he 
must  even  deny  fully,  and  in  the  most  precise  terms,  every  circum- 
stance from  which  notice  could-  be  inferred:"  Denning  v.  Smith, 
3  John.  Ch.  Rep.  3 15.  Moreover,  at  the  time  of  the  purchase  by 
Dunn,  Hillyer,  from  whom  he  bought,  was  not  only  out  of  posses- 
sion, but  Wilson  was  claiming  adversely,  and  an  ejectment  had 
been  previously  instituted. 

There  is  enough,  then,  in  my  opinion,  in  the  case,  to  bring 
Dunn  also,  as  well  as  Hillyer,  within  the  relief  to  which  Wilson  is 
entitled. 

What,  in  the  next  place,  is  the  extent  of  that  relief?  It  will  ap- 
pear from  a  succinct  view  of  the  rights  of  the  respective  parties 

1.  The  complainant  is  entitled  to  the  sum  of  one  thousand  dol- 
lars. 

2.  This  sum  of  one  thousand  dollars  should  have  been  paid  on 
the  2d  day  of  April,  1823.     Doctor  Smith,  the  president  of  the 
bank,  says,  the  one  thousand  dollars  was  "  to  be  paid   the  next 
spring  at  the  usual  time  of  leasing  farms."     Hillyer,  in  his  an- 
swer, says,  "  Wilson  continued  to  occupy  the  premises  for  one 
year,  according  to  the  agreement,  and  at  the  expiration  of  the  year, 
to  wit,  on  the  2d  day  of  April,  1823,  he  went  to  the  house  of  Wil- 
son for  the  purpose  of  paying  him." 

3.  The  possession  of  the  farm  should  have  been  at  the  same 
time  delivered  by  Wilson  to  Hillyer. 

4.  The  defendants  are  entitled    to  a  release  from  Hillyer  and 
wife,  of  her  right  of  dower  in  the  farm.     Daniel  W.  Disborough 
testifies  that  one  of  the  terms  of  the  agreement  was  a  relinquish- 
ment  of  the  right  of  dower  of  the  wife  of  Wilson.     The  other  wit- 
nesses do  not,  it  is  true,  mention  this  matter ;  but  they  do  not  deny 
it,  nor  do  they  say  anything  inconsistent  with  it:  I  deem  it,  there- 
fore, sufficiently  proved  by  the  direct  and  uncontradicted  testimony 
of  one  respectable  witness.     This   point  is  also  in  some   measure 
strengthened  by  the  fact,  that,  according  to  the  article  of  agreement, 
the  wife  of  Hillyer,  as  well  as  himself,  was  to  execute  a  release  to 
Egbert. 


74  CASES  IN  CHANCERY. 

Smith  et  al.  v.  Wood. 

5.  Inasmuch  as  acts  should  have  been  done  in  April,  1823,  by 
both  parties  to  the  agreement,  which  yet  remain  undone ;  and  as 
Wilson  has  since  been  in  the  receipt  of  the  rents,  issues,  and  profits, 
the  amount  of  which,  though  not  accurately  ascertained  by  the 
testimony,  is  fully  shown  to  exceed  the  annual  interest  on  the  sum 
of  one  thousand  dollars,  art  account  should,  in  my  opinion,  be  ta- 
ken of  the  amount  due  to  Wilson  ;  charging  on  the  one  hand,  the 
one  thousand  dollars  with  interest  from  the  2d  day  of  April,  1823, 
and  allowing  on  the  other  hand,  the  just  annual  value  of  the 
farm,  from  the  same  time." 

I  do  therefore,  respectfully  recommend  to  his  excellency  the 
Chancellor,  that  a  decree  be  made  to  carry  into  effect  theee  princi- 
ples, with  a  reference  to  a  master  to  take  and  report  the  account 
above  mentioned,  and  that  the  question  of  costs  be  reserved  until 
the  final  decree.  CHARLES  EWINQ. 


SMITH  ET   AL.  v.  WOOD,   ON   BILL;— AND,  WOOD  v.  SMITH, 
ON  CROSS-BILL. 


The  party  making  payment  lias  the  right  of  directing  its  application  to  the  dis- 
charge of  any  particular  demand  he  may  think  fit,  provided  he  does  it  at  or 
before  the  time  of  making  the  payment ;  but  if  the  payment  is  made  ge- 
nerally, without  any  such  direction,  then  the  person  receiving*may  apply 
the  payment  to  any  demand  in  his  hands  against  the  person  by  whom,  or  on 
whose  account,  the  payment  is  made. 

Smith  and  Wright,  while  partners  in  trade,  purchased  a  part  of  the  Millville 
furnace  property,  of  Senders,  and  gave  him  their  bonds  and  mortgage  on  the 
premises,  for  the  purchase  money.  They  sold  and  conveyed  their  respective 
moieties  of  the  property  to  Jones,  who  gave  his  bond  and  mortgage  to  Smith 
for  the  purchase  money  due  to  him,  and  also  a  mortgage  to  indemnify  him 
against  the  outstanding  bonds  to  Souders.  Jones  afterwards  conveyed  the 
•whole  property  to  Quinby,  who  re-conveyed  it  to  Wood,  subject  to  these 
liens.  Wood  demised  the  property  to  Wright,  who  in  the  lease  was  bound 
to  pay  the  balance  of  rents,  after  certain  deductions,  to  Smith,  "  on  account  of 
his  claims  against  D.  C.  Wood  and  the  Millville  furnace  property,  or  such 
part  as  might  then  be  due."  Within  the  year,  Smith,  in  lieu  of  the  balance 
of  rents,  agreed  to  accept  Wright's  notes  for  specific  sums,  payable  at  six 
and  seven  months ;  which  were  given,  and  paid,  without  any  further  direc- 
tion from  Wood.  The  stipulation  in  the  lease,  from  which  Wright  derived 


JULY  TERM,  1830.  75 


Smith  et  al.  v.  Wood. 


his  authority  to  pay  Smith,  was  an  appropriation  by  Wood  of  the  payment 
subsequently  made,  and  Smith  was  bound  to  credit  it  accordingly. 

Before  the  receipt  of  the  money  from  Wright,  Smith  had  paid  a  sum  of  money 
to  Souders,  in  part  discharge  of  a  judgment  obtained  against  Wood  and  him- 
self, on  one  of  the  outstanding  bonds  given  for  purchase  money,  and  secured 
by  the  mortgage  which  was  a  lien  on  part  of  the  property  then  in  the  hands 
of  Wood.  On  making  this  payment,  Smith  had  a  perfect  claim  against  the 
property  for  his  indemnity ;  he  had  a  right  to  pay  this  claim  out  of  the  first 
moneys  received  of  Wright,  and  such  application  of  the  money  was  in  strict 
conformity  with  the  agreement  and  appropriation  of  Wood. 

Whether  land  purchased  by  partners  in  trade,  as  between  themselves,  or  be- 
tween them  and  their  creditors,  is  to  be  considered  as  real  or  personal  estate? 
Query. — But  where,  as  in  this  case,  no  claims  of  creditors  interfered,  and  the 
partners  themselves  had  not  considered  the  property  as  partnership  property, 
but  treated  it  as  real  estate,  and  separately  sold  and  conveyed  their  respective 
moieties,  at  different  times,  and  for  different  prices,  it  must  be  considered  as 
real  estate;  and  the  balance  due  on  the  bond  of  the  partners  to  Souders,  for 
the  purchase  money,  not  as  a  partnership  debt,  to  be  settled  in  the  partner- 
ship accounts  ;  but  as  a  claim  against  the  property,  and  the  payment  of  that 
claim  cornes  within  the  above  appropriation. 

There  being  in  this  case  no  claims  of  Smith,  against  Wood  and  the  property, 
strictly  speaking,  i.  e.  which  both  were  liable  to  pay,  to  the  extent  of  the  ap- 
propriation ;  it  not  appearing  that  Wood  was  personally  liable  to  pay  the 
Jones  bondM  and  mortgage,  although  he  bought  the  property  subject  to  the 
lien ;  the  stipulation  in  the  lease,  must,  under  the  circumstances  of  the  case, 
be  understood  to  mean — the  claims  of  Smith  against  the  property  in  the 
hands  of  Wood,  which  he,  as  owner  of  the  equity  of  redemption,  was,  in  a 
certain  sense,  liable  to  see  paid  as  part  of  the  consideration  of  his  purchase  ;— 
therefore  a  note,  given  by  Wood  to  Smith  and  Jones,  which  grew  out  of  the 
partnership  transactions  of  Smith  and  Wood,  birt  was  not  a  lien  upon  the 
furnace  property,  was  not  within  the  appropriation  of  rent  made  in  the  lease, 
and  Smith  had  no  right  to  apply  any  part  of  the  money  received  of  Wright 
to  the  discharge  of  that  demand. 

By  the  stipulation  in  the  lease,  Wright  was  to  pay  the  balance  of  rents,  as  they 
were  received.  Smith,  in  lieu  of  the  rents,  agreed  to  tak.e  the  notes  of  Wright. 
They  must  be  regarded  as  assumptions,  to  pay  specific  portions  of  the  rent  at 
specified  times;  and  the  whole  amount  of  the  notes  must  be  applied,  as  pay- 
ments, at  the  times  they  became  due ;  and  not  the  present  value  (after  de- 
ducting discount)  credited  at  the  time  the  notes  were  given. 

When  there  is  a  general  payment  made  by  A.,  by  a  draft  in  favor  of  B.,  with- 
out any  specific  appropriation  by  A. — and  B.  gives  a  receipt  for  the  draft — 
*  when  paid,  to  be  applied,  first,  to  pay  interest,  and  next,  so  much  principal 
on  Jones'  bonds  and  mortgage  on  the  Millville  property" — this  is  an  express 
appropriation  of  the  funds,  by  which  all  parties  are  bound.  It  cannot  after- 
wards be  altered,  but  by  mutual  consent ;  and  then,  not  to  affect  the  rights 
of  third  persons. 

A  draft,  payable  out  of  a  particular  fund,  at  an  indefinite  period  of  time,  and 
on  a  contingency,  is  not  a  bill  of  exchange,  subject  to  the  rules  governing 


78  CASES  IX  CHAXCERY. 

Smith  et  al.  v.  Wood. 

commercial  paper;  and  a  general  acceptance  does  not  alter,  but  follows  the 
nature  of  the  draft.  On  receiving  such  a  draft,  and  giving  a  receipt  for  it, 
promising  "to  credit  it  when  paid,"  the  receiver  cannot  be  obliged  to  credit 
it  until  paid,  or  held  accountable  for  not  using  due  diligence  to  collect  it: 
the  original  debt  remains  until  the  money  is  paid.* 


In  July,  1827,  Edward  Smith,  Hugh  F.  Hollingshead,  and  Wil- 
liam Platt,  exhibited  their  bill  in  this  court  against  David  C. 
Wood,  and  others,  to  foreclose  the  equity  of  redemption  in  certain 
mortgaged  premises  in  the  county  of  Cumberland.  The  bill  states, 
that  in  the  year  1816,  Smith  and  Wood  were  seized  in  fee  sim- 
ple, as  tenants  in  common,  of  a  certain  furnace,  mills,  lands,  and 
other  premises,  in  the  said  county,  and  that  David  C.  Wood  hav- 
ing bargained  with  one  Joseph  Jones  to  sell  him  his  equal  moiety 
of  the  property,  he,  Jones,  with  the  knowledge  and  at  the  request 
of  Wood,  applied  to  the  complainant,  Smith,  to  purchase  hia 
moiety: — to  which  the  complainant  agreed,  on  condition  that  the 
purchase  money  should  be  secured  by  a  mortgage  on  the  whole 
property  prior  to  any  other  incumbrance.  In  pursuance  of  this 
agreement,  D.  C.  Wood,  on  the  25th  March,  1816,  conveyed  to 
Jones  his  half  part  of  said  premises — and  the  complainant  also 
conveyed  to  him  his  moiety — whereby  the  said  Jones  became  the 
owner  in  fee  of  the  whole,  subject  to  an  older  mortgage  to  Keyser 
and  Gorgas.  On  the  same  day,  Jones  and  wife  executed  to  Smith 
a  mortgage  on  the  said  property,  to  secure  the  payment  of  four 
several  bonds  duly  executed  by  him  to  the  said  Smith — one  for 
the  payment  of  six  thousand  two  hundred  and  ninety-six  dollars 
and  ten  cents,  in  one  year  from  date,  with. lawful  interest;  and 
the  remaining  three,  each  for  the  payment  of  ten  thousand  two 
hundred  and  ninety-six  dollars  and  ten  cents,  one  payable  in  1818, 
one  in  1819,  and  the  other  in  1820;  that  after  the  execution  and 
registry  of  this  mortgage,  viz:  on  the  27th  March,  1816,  Jones 
and  wife  conveyed  the  said  premises  to  one  Josiah  B.  Quinby,  and 
on  the  2d  April,  1816,  Quinby  re-conveyed  the  same  to  Wood, 
subject  to  the  complainant's  mortgage,  and  that  Wood  agreed  to 
pay  off  said  mortgage. 

On  the  5th  July,  1823,  Smith  assigned  Hollingshead  and  Platt 
the  mortgage,  and  the  three  last  mentioned  bonds,  with  the  interest 

*  On  this  point,  see  the  decision  of  the  Court  of  Appeals,  postea. 


JULY  TERM,  1830.  77 

Smith  et  al.  v.  Wood. 

due  thereon  from  the  8th  of  February  then  last  past ; — the  balance 
of  interest  up  to  that  time,  with  the  bond  for  six  thousand  two  hun- 
dred and  ninety-six  dollars  and  ten  cents,  still  remaining  due,  and 
to  be  paid  to  the  complainant,  Smith.  Although  sundry  payments 
had  been  made,  yet  there  remained  due  to  Hollingshead  and  Platt, 
on  the  8th  February,  1827,  the  sum  of  seventeen  thousand  five 
hundred  and  fifty-three  dollars  and  forty-two  cents,  besides  cer- 
tain notes  given  by  Wood  towards  payment,  amounting  to  five 
thousand  five  hundred  and  fifty-three  dollars  and  fifty-six  cents, 
but  which  are  still  unpaid  ;  and  there  also  remained  due  at  the 
same  period  to  Smith,  on  his  bond,  six  thousand  one  hundred  and 
sixty  dollars  and  eighty  cents.  The  bill  further  states,  that  a  part 
of  this  property  was  originally  purchased  by  Smith  and  Wood,  of 
Keyser  and  Gorgas,  who  took  a  mortgage  for  part  of  the  purchase 
money,  which  was  a  lien  on  that  part  of  the  property  at  the  time 
of  the  purchase  by  Wood,  and  formed  a  part  of  the  considera- 
tion ;  that  Wood  accordingly  paid  off  said  incumbrance  with  the 
exception  of  two  thousand  dollars,  being  the  principal  of  two  bonds 
for  one  thousand  dollars  each,  one  payable  1st  October,  1819,  the 
other  1st  October,  1820 ;  that  on  the  9th  June,  1827,  Keyser  and 
Gorgas  assigned  to  the  complainant,  Smith,  the  said  mortgage  and 
bonds,  which  bonds  are  still  due.  The  bill  prays  a  foreclosure  and 
sale  of  the  premises  to  satisfy  the  amount  due  to  the  different 
complainants. 

David  C.  Wood,  in  his  answer,  states,  that  he  and  Smith  were 
formerly  in  partnership  as  merchants,  in  Philadelphia,  under  the 
firm  of  Smith  and  Wood  ;  that  commerce  being  embarrassed,  they 
agreed  to  turn  their  attention  to  the  manufacture  of  iron,  and  for 
that  purpose  purchased  the  mortgaged  premises  described  in  the 
bill.  He  admits  the  sales  as  set  out  in  the  bill,  and  the  giving  of 
the  mortgage  to  the  complainant,  Smith ;  but  denies  that  he  enter- 
ed "  into  any  absolute  engagement  personally  to  pay  said  Smith 
what  was  due  on  it."  He  admits  the  assignment  of  the  bonds  to 
Hollingshead  and  Platt,  and  alleges  that  he  has  made  to  them  sun- 
dry payments,  which  ought  to  be  credited  on  the  bonds,  and  that  he 
has  fully  paid  and  satisfied  the  mortgage  of  Keyser  and  Gorgas.  He 
states  further,  that  the  notes,  drafts,  payments  and  advances  drawn 
and  made  by  him  and  his  agents  to  the  complainants,  or  their  or- 


78  CASES  IX  CHANCERY. 


Smith  et  al.  v.  Wood. 


cler,  and  upon  their  account,  and  towards  the  payment  of  the  said 
mortgage  given  by  the  said  Jones  to  the  said  Smith,  and  which 
ought,  in  justice  and  good  conscience  to  be  allowed  him,  will,  upon 
a  just  and  fair  account,  in  his  opinion  fully  discharge  said  marl- 
gage,  and  tenders  himself  ready  to  pay  what  may  be  due  on  an 
account  taken,  and  hopes  that  if  he  has  overpaid,  the  amount  so 
overpaid  may  be  refunded. 

A  replication  having  been  put  in,  a  decree  pro  confesso  was  ta- 
ken against  the  defendants,  who  had  not  answered,  and  it  was  re- 
ferred to  one  of  the  masters  of  the  court,  to  take  an  account  of  what 
•was  due  and  payable  for  principal  and  interest  on  the  mortgage 
and  bonds  given  by  Jones  to  Smith,  making  to  all  parties  just  al- 
lowances, with  authority  to  examine  the  parties  on  interrogatories 
touching  the  said  matters  in  controversy. 

Pending  the  reference,  the  defendant,  Wood,  filed  a  cross-bill,  to 
which  an  answer  was  put  in  by  the  original  complainants.  The 
parties  filed  their  statements  of  charge  and  discharge  before  the  mas- 
ter. David  C.  Wood  was  examined  on  interrogatories;  testimo- 
ny was  taken  on  both  sides;  and  after  a  full  examination  of  the 
whote  case,  the  master,  on  the  25th  June,  1829,  made  his  report, 
that  there  was  due  on  that  day  from  David  C.  Wood  to  Edward 
Smith,  the  sum  of  four  thousand  nine  hundred  and  twelve  dollars 
and  ninety  cents,  and  from  David  C.  Wood  to  Hollingshead  and 
Platt,  the  sum  of  twenty  thousand  four  hundred  and  seventy-eight 
dollars  and  fifty  cents. 

To  this  report  of  the  master,  both  parties  filed  exceptions,  the 
purport  of  which  appears  in  the  opinion  of  the  court.  The  excep- 
tions were  argued  at  the  last  term,  by 

L.  Q.  C.  Elmer,  and  I.  H.  Williamson,  for  the  complainants 
in  the  original  bill,  and  by 

G.  Wood,  and  G.  D.  Wall,  for  the  defendants. 

THE  CHANCELLOR.  I  shall  consider  the  exceptions  in  the  or- 
der in  which  they  were  presented  to  the  court. 

And  first,  as  to  the  exceptions  filed  by  defendant,  David  C.  Wood. 

The  first  is — That  the  said  master,  in  and  by  his  said  report, 
hath  charged  the  said  defendant,  in  schedule  A.  "  by  amount  paid 


JULY  TERM,  1830.  79 

Smith  et  al.  v.  Wood. 

D.  Souders,  as  per  exhibit  18  of  complainant,  and  paid  for  defen- 
dant, by  E.  Smith,  four  hundred  and  forty  dollars  and  eleven  cents. 
Interest  from  May  29th,  1820,  when  paid,  till  May  14th,  1821,  when 
the  first  note  was  paid,  twenty-nine  dollars  and  fifty-two  cents; 
equal  to  four  hundred  and  sixty-nine  dollars  and  sixty-three  cents. 
Whereas  the  said  defendant-apprehends  that  the  said  master  ought 
not  to  have  charged  him  with  the  same,  because  it  was  paid,  if 
paid  at  all,  without  the  approbation  of  the  said  defendant ;  and  it 
was  settled,  or  ought  to  have  been  settled  and  charged  in  the  ac- 
count of  Smith  and  Wood  ;  and  because  it  was  expressly  appro- 
priated as  a  payment  in  discharge  of  Jones's  mortgage,  and  could 
not  be  appropriated  by  said  Smith ;  and  because  it  is  no  lawful 
item  in  the  said  account." 

Schedule  A.  referred  to  in  this  exception,  aifd  which  is  appen- 
ded to  the  report,  contains  the  master's  statement  of  the  amount 
of  principal  and  interest  due  on  all  the  bonds,  on  the  8th  February, 
1823,  when  the  three  last  bonds  were  assigned  by  Smith  to 
Hollingshead  and  Platt.  According  to  this  statement,  the  amount 
due  from  Wood  to  Smith,  on  all  the  bonds,  at  that  date,  was 
forty  thousand  three  hundred  and  sixty  dollars  and  nine  cents. 
In  ascertaining  this  amount,  the  master,  after  computing  the  in- 
terest, deducts  therefrom  the  several  payments  made  to  Hollings- 
head and  Platt,  by  Wood  and  his  agents,  either  in  money  or  notes. 
Among  the  several  items  of  payment,  there  are  placed  under  the 
date  of  14th  November,  1820,  two  several  ftotes  of  Samuel  G. 
Wright,  one  payable  May  14th,  1821,  for  two  thousand  three  hun- 
dred and  twenty  dollars  and  seventy-seven  cents ;  the  other  paya- 
ble June  14th,  1821,  for  two  thousand  three  hundred  and  thirty-two 
dollars  and  seventy-nine  cents;  making  in  all,  four  thousand  six 
hundred  and  fifty-three  dollars  and  fifty-six  cents.  It  appears  that 
instead  of  lessening  the  interest  then  due,  by  the  amount  of  those 
two  notes,  the  master  has  deducted  from  that  amount  the  sum  of 
four  hundred  and  forty  dollars  and  eleven  cents,  being  so  much 
paid  by  Smith  to  Philip  Souders,  for  and  on  behalf  of  the  defendant, 
Wood  :  and  he  has  also  deducted  the  further  sum  of  twenty-nine 
dollars  and  fifty-two  cents,  being  interest  on  the  payment  to  Sou- 
ders, the  same  having  been  paid  before  Wright's  notes  became  due. 
The  defendant  insists  that  this  is  a  mis-appropriation  on  the  part 


80  CASES  IN  CHANCERY. 

Smith  et  al.  v.  Wood. 

of  Smith;  that  the  whole  amount  of  those  notes  should  have  been 
applied  to  the  payment  of  the  Jones  bonds ;  and  therefore,  that  the 
deduction  made  by  the  master  is  incorrect. 

On  the  other  hand,  it  is 'contended  by  the  complainant,  that  not 
only  is  that  deduction  right,  but  that  other  deductions  should  have 
been  made  by  the  master :  that  he  shotrld  have  deducted  from  said 
notes  the  sum  of  one  hundred  and  fifty-three  dollars  and  fifty-six 
cents,  for  the  discount  or  interest  thereon  ;  and  the  sum  of  seven 
hundred  and  eighty-one  dollars  and  eighty-four  cents,  for  the 
amount  of  David  C.  Wood's  note  to  Jones  and  Smith,  and  interest 
thereon  ;  and  should  have  allowed  only  the  sum  of  three  thousand 
two  hundred  and  sixty-five  dollars  and  ninety-five  cents,  as  a  credit 
on  said  bonds  and  mortgage,  that  being  the  amount  of  credit  en- 
dorsed on  the  sarfle  by  the  complainants.  This  alleged  omission 
of  the  master  is  made  the  ground  of  the  first  exception  to  the  report 
on  the  part  of  the  complainants.  These  two  exceptions  relate  to 
the  same  subject,  and  will  be  considered  together. 

There  is  no  doubt  as  to  the  receipt  of -this  money  by  Smith  ;  the 
difficulty  is  in  the  appropriation. 

It  appears  that  Samuel  G.  Wright  was  a  tenant  of  David  C. 
Wood.  On  the  13th  day  of  December,  1819,  he  rented  the  furnace 
and  lands,  and  a  farm  in  Burlington,  called  the  Green  Hill  farm, 
of  Wood,  for  one  year  from  the  1st  of  January,  1820,  By  this 
lease,  he  bound  himself  to  pay,  in  the  first  place,  certain  sums  of 
money  to  Wood,  then  certain  claims  against  Wood  and  the  pro- 
perty, and  after  paying  expenses,  commissions,  and  all  other  charges, 
to  pay  the  remaining  balance,  or  nett  proceeds  of  the  blast  of 
1820,  when  collected,  if  any  there  should  be,  to  Edward  Smith, 
on  account  of  his  claim  against  David  C.  Wood,  and  the  Mill- 
mile,  furnace  and  property,  or  such  part  as  might  then  be  due. 
It  is  from  this  agreement  that  Wright  derives  his  authority  to  pay 
any  money  to  Smith.  Upon  clear  and  ordinary  principles,  Wood 
had  a  right  to  appropriate  the  money  thus  to  be  paid  on  his  behalf. 
It  is  well  settled  that  the  person  making  payment  has  the  right  of 
directing  its  application  to  the  discharge  of  any  particular  demand 
lie  may  think  fit,  provided  he  does  it  at  or  before  the  time  of  mak- 
ing the  payment :  but  if  the  payment  is  made  generally,  without 
any  such  direction,  then  the  person  receiving,  may  apply  the  pay- 


JULY  TERM,  1830.  81 


Smith  et  al.  v.  Wood. 


ment  to  any  demand  in  his  hands,  against  the  person  by  whom,  or 
on  whose  account,  the  payment  has  been  made.  Within  the  year, 
and  during  the  existence  of  the  lease,  viz  :  on  the -14th  November, 
1820,  Smith  agreed  to  accept  of  Wood,  in  lieu  of  the  balance  so  to  be 
paid  to  him  as  aforesaid,  the  two  notes  of  Samuel  G.  Wright,  here- 
tofore described,  amounting  to  four  thousand  six  hundred  and  fifty- 
three  dollars  and  fifty-six  cents  ;  and  authorized  Wright  to  pay 
over  to  Wood  any  balance  that  might  remain  after  paying  the 
amount  of  the  notes. 

On  the  29th  May,  1820,  Edward  Smith  paid  to  Philip  Souders, 
in  part  discharge  of  a  judgment  he  had  against  Smith  and  Wood, 
four  hundred  and  forty  dollars  and  eleven  cents.  This  judgment 
was  obtained  on  one  of  the  bonds  they  had  given  to  Souders,  for 
the  purchase  money  of  part  of  the  furnace  property.  The  mort- 
gage accompanying  the  bonds,  was  a  lien  on  this  part  of  the  pro- 
perty ;  and  it  appears  that  when  Smith  sold  to  Jones  his  moiety, 
he  took  from  Jones  a  mortgage  of  indemnity  upon  the  whole  pre- 
mises, to  secure  him  against  any  claim  that  might  be  made  against 
him  on  these  outstanding  bonds.  When,  therefore,  Smith  paid 
this  money  on  the  judgment,  he  had  a  perfect  claim  against  the 
Millville  property  for  indemnity.  Jones  was  equitably  bound  to 
pay  it,  as  the  owner  of  the  equity  of  redemption.  After  thejsale  to 
Wood,  he  stood  in  the  place  of  Jones.  Neither  of  them  having 
paid  it,  and  Smith  being  legally  called  on,  and^  having  satisfied  it, 
had  a  legal  right  under  the  agreement,  as  I  conceive,  to  pay  this 
claim  out  6"f  the  first  moneys  he  might  receive  from  Wright.  The 
application  was  in  strict  conformity  with  the  agreement,  and  the 
appropriation  of  Wood  himself;  and  the  report  of  the  master  is 
correct,  unless  another  objection  raised  by  the  counsel  of  Wood, 
shall  prevail. 

It  is  objected  that  the  debt  due  to  Souders  by  Smith  and  Wood, 
grew  out  of  a  partnership  transaction,  and  is  not  to  be  brought  in 
question  here;  that  the  partnership  concerns  are  still  unsettled; 
and  that  we  have  nothing  to  do  with  any  other  matter  than  the 
bonds  and  mortgage  of  Jones.  It  may  be  the  case  that  this  pro- 
perty was  purchased  of  Souders  for  partnership  purposes,  and 
that  the  partnership  concerns,  strictly  speaking,  are  not  fully  set- 
tled ;  and  yet  not  follow  of  necessity  that  this  payment  is  to  be 
considered  as  the  payment  of  a  partnership  debt, 

F 


82  CASES  IN  CHANCERY. 

Smith  et  al.  v.  Wood. 

I  do  not  think  it  necessary  now  to  inquire,  how  this  real  property 
might  have  been  considered  in  equity  as  between  the  partners 
themselves,  during  the  existence  of  the  partnership,  or  afterwards 
as  between  the  partners  and  creditors.  The  law  upon  the  subject 
does  not  appear  well  settled  either  in  England  or  this  country. 
Lord  Thurlow  held,  in  Thornton  v.  Dixon,  3  Bro.  C.  C.  199, 
that  upon  the  dissolution  of  a  partnership,  the  property  would  re- 
sult according  to  its  respective  nature  ;  the  real  as  real,  and  the  per- 
sonal as  personal :  and  of  this  opinion  was  Sir  William  Grant, 
the  master  of  the  rolls,  in  Balmaine  v.  Shore,  9  Ves.  jr.  500.  Oil 
the  contrary,  Lord  Eldon  is  represented,  in  2  Dow,  242,  to  have 
stated  it  as  his  opinion,  that  all  property  involved  in  a  partnership 
concern,  ought  to  be  considered  as  personal.  And  in  the  late 
case  of  Townsend  v.-  Devaysnes,  cited  in  GOI.V  on  Park  54,  and 

1  Montague,   97,   this  doctrine   appears  to    be   supported    by  the 
opinion  of  the  court.     In  New- York  and  Massachusetts  it  is  held 
-substantially,  that  real  estate  owned  by  partners,  is  to  be  consider- 
ed and  treated  as  such,  without  any  reference  to  the  partnership  ; 
and   that  the  same  would  go,  on  the  death  of  either  of  the  part- 
ners, or  the  insolvency  of  the  firm,  to  pay  their  respective  credit- 
ors at  large;    15  John.   159,  11  Mass.  469;  while  in  Virginia, 
such  property  will  be  considered  strictly  as  partnership  property, 
save  only  as  against  purchasers  and  incumbrancers  without  notice. 

2  lfufl/387. 

In  the  case  before  the  court,  there  are  no  claims  of  creditors  in- 
terfering and  to  be  settled  ;  and  it  is  manifest  that  this  property 
was  not  considered  by  the  parties  as  partnership  property.  When, 
after  the  dissolution  in  1816,  they  sold  to  Jones,  they  sold  sepa- 
rately, and  for  different  prices.  They  conveyed  by  separate  in- 
struments, each  conveying  a  moiety.  Jones,  as  the  purchaser  of 
the  equity  of  redemption,  became  bound  to  pay  off  Smith's  moie- 
ty of  this  debt  to  Souders,  as  well  as  Wood's,  without  any  refer- 
ence to  their  partnership  transactions:  so  also  did  Quinby;  and 
Wood,  who  purchased  the  whole  from  Quinby,  stands  in  the 
same  situation.  Accordingly  we  see  that  Wood  has  actually 
paid  off  and  satisfied  the  whole  of  this  outstanding  incumbrance  on 
the  property,  with  the  exception  of  this  small  sum  of  four  hun- 
dred and  sixty-nine  dollars  and  sixty-three  cents ;  and  that  too  with 
his  own  funds.  It  appears  also  from  another  circumstance,  that  at 


JULY  TERM,  1830.  83 


Smith  et  al.  v.  Wood. 


the  time  of  the  dissolution  of  the  partnership,  the  debt  to  Senders 
was  not  considered  by  them  as  a  partnership  debt.  It  is  not  con- 
tained in  the  list  of  debts  made  out  at  the  time  and  signed  by  the 
parties;  and  in  the  articles  of  agreement  then  entered  into,  pro- 
vision is  made  for  the  payment  of  the  partnership  debts  out  of 
the  partnership  funds,  i.  e.  stock  on  hand,  and  outstanding  claims; 
but  not  for  the  -bonds  which  had  been  given  jointly  and  severally. 
These  were  to  be  paid  by  each  party  paying  his  half.  Smith  had 
already  provided  for  the  payment  of  his  moiety ;  Jones,  the  pur- 
chaser was  bound  to  pay  it  for  him,  and  had  indemnified  him 
against  any  claim  growing  out  of  his  (Smith's)  original  liability. 
I  consider  the  appropriation  to  have  been  properly  made,  and  that 
this  first  exception  of  the  defendant  must  be  disallowed. 

The  fi*st  exception  of  the  complainants  is  connected  with  this 
part  of  the  case,  and  will  now  be  considered.  The  complainants 
insist,  that  out  of  these  notes  of  Wright  should  be  deducted  the 
further  gum  of  seven  hundred  and  eighty-one  dollars  and  eighty- 
four  cents,  for  the  amount  of  David  C.  Wood's  note  to  Jones  and 
Smith,  and  interest  thereon.  This  note  had  been  paid  by  Smith, 
and  it  was  admitted  to  be  a  note  given  in  lieu  of  a  partnership 
note,  that  was  to  be  paid  by  Wood.  Smith  having  endorsed 
and  paid  the  note,  had  a  just  claim  against  Wood  for  the  amount: 
whether  he  could  retain  it  out  of  the  proceeds  of  Wright's 
notes,  depends  on  the  construction  to  be  given  to  the  lease  or 
agreement  between  Wood  and  Wright.  In  that  agreement  it 
was  stipulated  that  the  nett  proceeds  of  the  blast  of  1820,  should, 
after  making  thereout  certain  deductions,  be  paid  to  Edward 
Smith,  "on  account  of  his  claim  against  David  C.  Wopd  and  the 
Millville  furnace  and  property,  or  such  part  as  may  then  be 
due."  This  language,  taken  in  connection  with  the  circum- 
stances of  the.  case,  is  not  very  explicit.  Taken  literally,  it  would 
seem  to  apply  to  no  claim  save  such  as  Smith  might  have 
against  David  C.  Wood  and  the  property  jointly ;  i.  e.  David  C. 
Wood  and  the  property  being  both  liable  to  pay  it.  Now,  strict- 
ly speaking,  there  was  no  such  claim.  It  does  not  satisfactorily 
appear  that  Wood  was  even  personally  and  legally  liable  to  pay 
the  bonds  of  Jones,  although  he  bought  the  property  subject  to 
them.  This  literal  construction  does  not  suit  the  views  of  either 


84  CASES  IN  CHANCERY. 


Smith  et  al.  v.  Wood. 


party,  and  cannot  be  taken  as  the  true  one.  The  complainants 
say  it  must  be  taken  to  mean,  that  the  surplus  shall  be  applied 
to  the  payment  of  Smith's  claim,  either  against  Wood  or  against 
the  furnace  property.  The  other  party  insists  that  it  means 
Smith's  claim  against  the  furnace  property  in  the  hands  of 
Wood ;  and  which,  as  the  owner  of  the  equity  of  redemption,  he 
was  in  a  certain  sense  liable  to  see  paid,  as  a  part  of  the  conside- 
ration of  the  purchase.  I  think  this  latter  construction  is  the  true 
one,  not  only  from  the  words  of  the  agreement  itself,  but  also  from 
the  fact  that  both  parties  appeared  to  consider  the  proceeds  of  that 
property  as  pledged  for  the  payment  of  the  claim  that  Smith  had 
against  it.  The  note  of  Wood,  that  was  taken  up  by  Smith,  grew 
out  of  the  partnership  transactions,  and  I  think  it  was  clearly  the 
intention  of  the  parties  at  the  time,  to  keep  that  property  clear  from 
the  concerns  of  the  partnership.  The  opinion  is  confirmed  by  this 
circumstance;  the  agreement  for  the  next  year  between  Wood  and 
Wright  is,  so  far  as  relates  to  the  payment  of  the  surplus  to  Smith, 
in  precisely  the  same  words.  David  C.  Wood  afterwards  repre- 
sented to  Smith,  that  the  profits  of  the  blast  of  the  next  year,  (1821,) 
to  be  applied  to  him,  would  exceed  ten  thousand  dollars.  Where- 
upon Smith  addressed  a  letter  to  Wright,  informing  him  of  this, 
and  proposed  that  Wright  should  give  him,  Smith,  a  note  for  ten 
thousand  dollars,  drawn  in  favor  of  David  C.  Wood,  which  note 
he  said  he  would  accept,  "  and  place  the  proceeds  on  the  bonds  as 
a  credit  on  account  of  his  lien  against  the  Millville  furnace  property 
owned  by  David  C.  Wood,  subject  to  his  claim  against  said  pro- 
perty." This  is  very  explicit,  and  in  my  opinion  shows  clearly 
what  was  meant  by  the  parties,  in  speaking  of  the  claim  "against 
David  C.  Wood  and  the  Millville  furnace  and  property." 

But  it  is  said  that  the  appropriation  was  made  by  Smith  at  the 
time,  and  that  Wood  knew  of  it;  that  in  1825,  he  made  arrange- 
ments for  paying  the  interest  on  the  bonds  in  the  hands  of  Hollings- 
head  and  Platt,  and  must  have  then  known  that  the  whole  of  the 
money  paid  by  Wright  had  not  been  applied  to  those  bonds ;  that 
he  made  no  objections,  and  of  course  ratified  the  appropriation.  If 
this  be  true  it  will  alter  the  case,  but  it  should  be  clearly  shown. 
What  are  the  facts  ? 

On  the  14th  November,  1820,  Smith  received  of  Wright  his 
two  notes,  the  cash  value  of  which  was  four  thousand  five  hun- 


JULY  TERM,  1830.  85 

Smith  et  al.  v.  Wood. 

dred  dollars.  After  deducting  the  payment  on  the  Sonders  claim, 
and  also  the  payment  of  David  C.  Wood's  note  to'  Smith  and 
Jones,  he  endorsed  one  thousand  nine  hundred  and  ninety-four 
dollars  of  the -balance  on  the  bond  that  became  due  in  1818,  and 
the  residue,  one  thousand  two  hundred  and  seventy-one  dol- 
lars and  ninety-five  cents,  on  the  bond  that  fell  due  in  1819.  In 
July,  1823,  the  three  bonds  for  ten  thousand  two  hundred  and 
ninety-six  dollars  and  ten  cents  each,  were  assigned  over  by 
Smith  to  Hollingshead  and  Platt,  with  the  interest  from  the  8th 
February,  1823.  It  appears  by  Wood's  letter  to  Smith  of  7th 
February,  1825,  that  the  interest  on  these  bonds  remained  un- 
paid, and  that  Smith  was  about  to  proceed  by  ejectment  against 
the  property.  Wood  then  wrote  to  Smith  that  he  was  willing  to 
make  an  arrangement  with  Hollingshead  and  Platt,' respecting  the 
interest,  and  that  they  would  take  his  note  for  the  two  years'  in- 
terest, he  paying  the  discount,  if  Smith  would  not  proceed  against 
the  property.  On  the  12th  February,  1825,  Wood  gave  to  Hol- 
lingshead and  Platt  his  note  for  four  thousand  three  hundred  and 
twenty-four  dollars  and  thirty-six  cents,  being  just  two  years'  in- 
terest on  the  three  bonds  of  Hollingshead  and  Platt;  and  it  was 
insisted  that  at  this  time  Wood  must  have  known  that  the  whole 
of  the  notes  of  Wright  had  not  been  applied  to  these  bonds. 
The  force  of  this  argument  is  not  perceived.  It  was  never  pre- 
tended that  the  money  raised  from  Wright's  noteg,  even  if  it  had  all 
been  appropriated  to  these  bonds,  would  have  paid  any  part  of 
the  principal.  When  the  assignment  was  made  from  Smith  to 
Hollingshead  and  Platt,  the  amount  that  had  been  paid  for  inte- 
rest, or  what  interest  was  in  arrear,  was  not  a  subject  of  inquiry. 
They  took  an  assignment  of  the  principal  of  the  bonds  only;  all 
the  interest  due  on  those  bonds  up  to  8th  February,  1823,  be- 
longed to  Smith,  and  not  to  Hollingshead  and  Platt.  And  in  like 
manner,  when  Wood  gave  his  note  to  Hollingshead  and  Platt,  in 
February,  1825,  the  amount  of  the  note  did  not  at  all  involve 
the  inquiry  whether  any,  and  if  any  how  much,  back  interest 
was  due  on  the  bonds  at  the  time  of  the  assignment,  or  whether 
Wright's  notes  had  been  applied  to  those  bonds  or  not.  The 
note  given  was  for  two  years'  interest  precisely.  If  at  that  time  a 
note  had  been  given  by  Wood  to  Smith  for  the  arrears  of  inte- 
rest due  to  him,  we  might  have  ascertained  to  a  certainty  whe- 


86  CASES  IN  CHANCERY. 

Smith  et  al.  v.  Wood. 

ther  Wood  knew  of  the  manner  in  which  the  Wright  notes  were 
applied  ;  for  in  the  calculation  of  the  amount  of  such  interest,  the 
moneys  paid  by  Wright  must  necessarily  have  come  in  question. 
This  was  not  done,  and  I  have  seen  nothing  to  satisfy  me  that 
the  application  made  by  Smith  was  ever  sanctioned  by  Wood. 

As  to  the  .discount  claimed  on  Wright's  notes,  the  one  being 
payable  at  six  months,  and  the  other  at  seven  months,  I  think 
the  master  was  correct  in  disallowing  it.  Wright  was  originally 
to  pay  the  net  proceeds  of  the  blast  to  Smith  as  he  received 
them:  Smith  took  those  notes  in  lieu  of  them;  and  they  were  no 
more  than  assumptions,  that  certain  fixed  portions  of  the  proceeds 
should  be  paid  to  Smith  at  the  several  times  mentioned  in  the  notes 
respectively  ;  and  they  were  to  be  appropriated  when  they  became 
due. 

The  result  is,  that  the  first  exception  on  the  part  of  the  complain- 
ants, as  well  as  the  first  exception  on  the  part  of  the  defendant, 
must  be  disallowed. 

This  view  of  the  case  decides  the -second  exception  on  the  part 
of  the  complainant,  and  the  sixth  exception  on  the  part  of  the  de- 
fendant, both  of  which  are  disallowed. 

The  second  exception  on  the  part  of  the  defendant  is  as  follows : 
That  the  said  master  hath  not  charged  the  complainants,  and  al- 
lowed credit  to  the  defendant,  for  two  thousand  two  hundred  and 
sixty-nine  dollars  and  fifty-nine  cents,  the  amount  of  proceeds  paid 
by  Clayton  Earl,  on  Wood  and  Bacon's  note,  dated  1st  February, 
1818 ;  the  payments  as  follows  : — 

January  13,  1821,  $1,000  00 

February  5,  1821,  398  31 

September  11,  1821,  871  28 


$2,269  59 

The  eighth  exception  is,  that  the  master  has  not  charged  the 
complainants  with,  and  allowed  credit  to  the  defendant  for,  two 
thousand  dollars,  Wood  and  Bacon's  note,  which  was  received  by 
complainants,  and  ought  to  have  been  credited  on  the  mortgages. 
These  two  exceptions  relate  to  the  same  subject  matter,  and  will 
be  considered  together. 

The  case  and  evidence  show  that  Clayton  Earl  was  in  posses- 
sion of  this  furnace  property  for  four  years  next  preceding  the 


JULY  TERM,  1830.  87 


Smith  et  al.  v.  Wood. 


time  in  which  it  was  occupied  by  Wright;  that  is,  from  1816  to 
1820.  His  accounts  current  for  each  of  the  four  years  have  been 
exhibited  by  the  defendant ;  but  I  have  not  been  able  to  find  any 
written  agreements  between  Wood  ano\  Earl,  as  to  the  terms  of 
their  several  contracts,  as  there  were  afterwards  between  Wood 
and  Wright.  That  being  the  case,  the  rent  or  proceeds  of  the 
property  must  be  considered  as  due  to  Wood  personally  and  un- 
pledged, and  subject  to  such  order  and  appropriation  as  he  might 
make  from  time  to  time.  It  appears,  however,  that  in  March, 
1818,  Wood  gave  an  order  on  Earl  in  favor  of  Edward  Smith, 
for  two  thousand  five  hundred  dollars,  payable  out  of  the  pro- 
ceeds of  the  first  and  second  blasts  of  the  furnace,  and  another 
for  ten  thousand  dollars,  payable  out  of  the  proceeds  of  the  third 
blast.  These  drafts  were  accepted  by  Earl,  subject  to  some  pri- 
or acceptances,  and  passed  over  to  Smith,  who  gave  his  receipt 
for  them,  when  paid  to  be  applied,  first  to  pay  interest,  and  next 
so  much  principal,  on  Joseph  Jones's  bonds  and  mortgage,'  on 
the  Millville  furnace  and  property.  Here  was  an  express  ap- 
propriation of  funds  to  that  amount,  and  all  parties  were  bound 
by  it,  unless  it  was  altered  by  mutual  consent.  So  long  as  the 
rights  of  third  persons  were  not  affected,  they  were  at  liberty  to 
make  any  alteration  that  would  better  suit  their  views,  or  tend 
more  to  their  advantage.  Let  us  examine,  then,  whether  any 
such  alteration  was  made  in  regard  to  these^  funds  as  will  war- 
rant this  payment  to  Smith  for  the  purpose  to  which  it  was  ap- 
plied. 

On  the  19th  February,  1818,  Clayton  Earl  addressed  a  letter  to 
Wood  and  Bacon,  informing  them  that  Edward  Smith  and  Wil- 
liam Jones,  creditors  of  David  C.  Wood,  required  a  reduction  or  pay- 
ment of  one  thousand  six  hundred  dollars  to  be  made  on  Wood's 
notes,  on  which  they  (Wood  and  Bacon)  were  endorsers,  besides  one 
thousand  three  hundred  and  fifty  dollars  which  Smith  required  to  be 
paid  on  the  Souders  bonds.  These  sums,  he  remarks,  are  more  than 
he  had  intended  to  engage  to  pay,  but  he  had  told  David  C.  Wood 
that  if  he  would  give  him  (Earl)  Wood  and  Bacon's  note  for  two 
thousand  dollars,  payable  1st  February  next,  he  would  then  en- 
gage to  pay  those  sums;  and  that  the  note  was  to  be  held  as  col- 
lateral security,  and  not  to  be  made  use  of,  if.  he  could  reimburse 
himself  from  the  proceeds  of  the  furnace  by  that  time,  or  even  a 


88  CASES  IN  CHANCERY. 

Smith  et  al.  v.  Wood. 

little  longer.  A  note  was  accordingly  drawn  by  Wood  and 
Bacon,  in  favor  of  Clayton  Earl,  for  two  thousand  dollars, 
payable  1st  February,  1819.  This  note  was  afterwards  en- 
dorsed by  Clayton  Earl,  to  Edward  Smith  or  order,  without  re- 
course to  him.  When  this  was  done,  does  not  appear  from  the 
endorsement;  but  Earl  says,  in  his  examination,  that  after'  he 
(Earl)  received  the  note,  he  declined  paying  Edward  Smith  the 
amount  he  had  agreed  to  pay  him,  though  much  pressed  by 
Smith  for  the  money,  but  that  he  passed  the  note  itself  to  Smith, 
and  afterwards  paid  it  oif  in  different  payments,  as  appears  by  the 
endorsements  on  the  note.  Earl  says  further,  that  he:  believes 
Wood,  the  defendant,  was  present  when  this  was  done,  but  he 
will  not  be  positive:  he  can  say  this  much,  however,  that  it  was 
made  known  to  David,  and  he  never  made  any  complaint. 
He  says  that  it  was  an  understanding  between  D.  C.  Wood,  and 
Wood  and  Bacon,  and  himself,  that  he  should  pay  the  amount  of 
this  note  to  E.  Smith,  as  he  should  have  funds  to  meet  it.  He 
did  not  understand  from  either  of  the  .parties,  that  this  note  was 
to  be  applied  to  the  payment  of  Jones's  bonds.  His  impression 
was,  "  that  it  was  to  liquidate  certain  debts  which  Ed.  Smith 
had  paid  for  D.  C.  Wood  at  the  different  banks;  that  they  had 
dissolved  their  partnership  and  lessened  those  notes  which  Were 
to  be  paid  and  were  coming  due;  and  that  when  David  could 
not  meet  those  which  he  was  to  pay,  Edward  had  paid  them,  and 
that  there  was  a  running  account  between  them  for  the  moneys 
so  paid."  On  his  cross-examination,  the  witness  says;  "I  recol- 
lect no  distinct  agreement  between  Mr.  Smith  and  Mr.  Wood,  as 
to  the  manner  in  which  this  two  thousand  dollars  was  to  be  ap- 
propriated, when  it  was  paid  to  Mr.  Smith.  The  impression  of 
which  I  have  spoken  in  my  principal  examination,  results  from 
David  C.  Wood  having  frequently  applied  to  me  for  small  sums 
of  money,  to  meet  the  reduction  of  his  notes  at  the  different 
banks.  Sometimes  I  accommodated  him,  and  sometimes  I  did 
not."  In  connection  with  this  testimony,  there  is  an  account 
current  between  Wood  and  Smith,  which  is  in  evideiuie,  and 
shows  that  this  note  was  appropriated  by  Smith  at  the  tim«,  and 
in  what  way.  By  this  account  it  appears,  that  on  the  9th  May, 
1818,  Wood  was  indebted  to  Smith  for  moneys  loaned  him  to 


JULY  TERM,  1830.  89 

Smith  et  al.  v.  Wood. 

pay  discounts  and  take  up  notes  endorsed  by  Smith,  in  the 
amount  of  three  thousand  six  hundred  and  one  dollars  and  eigh- 
ty-nine cents.  On  the  same  9th  of  May,  Smith  credits  Wood 
with  the  amount  of  Wood  and  Bacon's  note,  less  the  discount  for 
nine  months,  at  which  time  it  would  be  due;  and  on  the  same 
day  he  credits  Wood  with  Wood's  own  note  of  same  date,  for 
one  thousand  seven  hundred  and  eighteen  dollars  and  thirty- 
nine  cents,  less  the  discount,  equal  to  one  thousand  six  hundred 
and  ninety-one  dollars  and  eighty-nine  cents  cash,  which  he  says 
is  the  balance  of  the  account  due  him,  after  crediting  Wood  and 
Bacon's  note.  Adding  together  those  two  notes,  the  sum  exactly 
corresponds  with  the  amount  then  appearing  to  be  due  from 
Wood  to  Smith,  on  their  running  account.  It  appears  also  by 
Wood's  own  note  book,  that  this  last  note  for  one  thousand  seven 
hundred  and  eighteen  dollars  and  thirty-nine  cents,  was  actually 
given  by  him  to  Ed.  Smith  on  the  9th  of  May,  1818.  If  this 
last  note  was  given  by  Wood  understandingly,  and  we  are  not  at 
liberty  to  dispute  it,  it  is  hardly  possible  to  escape  the  conclusion 
that  he  knew  of  the  purpose  to  which  the  Wood  and  Bacon  note 
was  to  be  applied. 

If  all  these  circumstances,  taken  in  connection,  do  not  prove  an 
absolute  agreement  between  the  parties,  they  do  at  least  lead  to  a 
satisfactory  conclusion,  that  this  appropriation  was. made  with  the 
express  knowledge  and  consent  of  Wood ;  and  having  already  re- 
ceived a  credit  for  the  amount,  it  would  be  unjust  that  he  should 
be  allowed  it  again,  as  a  payment  on  the  mortgage. 

Under  this  view  of  the  case,  the  second  and  eighth  exceptions 
of  the  defendants  are  disallowed. 

The  third  and  fourth  exceptions  of  the  defendants  relate  to  two 
several  drafts  of  David  C.  Wood  on  Clayton  Earl,  and  in  favor 
of  Edward  Smith,  for  ten  thousand  dollars  each. 

The  first  draft  is  in  the  following  words : — 

PHILADELPHIA,  March  9,  1818. 
To  CLAYTON  EARL. 

When  in  funds,  after  reimbursing  your  advances  which  you 
have  already  made,  or  may  hereafter  make,  for  carrying  on  the 
ensuing  contemplated  blast  at  Millville  furnace, 

Please  pay  to  Edward  Smith  or  order,  ten  thousand  dollars,  or 


90  CASES  IN  CHANCERY. 

Smith  et  al.  v.  Wood. 

as  much  thereof  as  may  remain  in  your  hands  after  reimbursing 
yourself  the  above  advances,  and  paying  rny  draft  in  favor  of  Henry 
B.  Kemble,  for  nine  hundred  and  seventy-nine  dollars,  and  oblige 
$10,000.  DAVID  C.  WOOD. 

This  draft  is  accepted  by  Clayton  Earl,  as  follows  : — Accepted 
March  9,  1818.  CLAYTON  EARL. 

It  appears  by  the  receipt  given  by  Smith  to  Wood  for  the 
draft,  that  the  acceptance  was  on  the  draft  when  he  received  it; 
and  in  the  receipt  Smith  promises  that  the  draft,  when  paid,  or 
any  part  thereof,  shall  be  applied  first  to  pay  interest,  and  next 
so  much  principal  on  Joseph  Jones's  bonds,  secured  by  mortgage 
on  the  Millville  furnace  and  property.  Five  several  payments 
were  made  on  this  draft  between  the  16th  January,  1822,  and  the 
17th  June,  1823,  inclusive,  amounting  in  the  whole  to  three 
thousand  one  hundred  and  thirty-three  dollars  and  sixty-nine 
cents;  leaving  a  balance  unpaid  of  six  thousand  eight  hundred 
and  sixty-six  dollars  and  thirty-one  cents.  The  master,  i-n  taking 
the  account,  has  charged  the  complainants  only  with  the  sums  re- 
ceived on  the  draft,  and  not  with  the  amount  of  the  draft  itself. 
The  defendant,  Wood,  alleges  that  this  is  an  error,  and  insists 
that  the  complainant,  Smith,  by  his  own  acts  made  himself  ac- 
countable for  that  sum;  that  Clayton  Earl  received  more  than 
the  amount  of  the  draft  on  account  of  the  blast,  and  that  Smith 
was  requested  by  the  defendant  to  proceed  against  Clayton  Earl 
for  the  same:  and  if  the  balance  of  the  draft  has  been  lost,  it  has 
been  owing  lo  the  neglect,  negligence  and  default  of  the  said 
complainant. 

In  order  to  ascertain  the  rights  and  duties  of  the  parties,  it  be- 
comes necessary  to  inquire  into  the  nature  of  the  instrument  gi- 
ven by  Wood  to  Smith,  and  accepted  by  Earl. 

It  is  not  a  regular  bill  of  exchange  :  it  is  payable  out  of  a 
particular  fund  ;  which  is  contrary  to  an  established  principle  re- 
gulating that  kind  of  commercial  paper,  that  the  credit  is  given 
to  the  drawer  or  endorser,  and  not  to  the  fund.  The  accep- 
tance being  general,  does  not  alter  its  character.  The  acceptance 
must  necessarily  follow  the  nature  of  the  draft.  Dawkes  v. 
Deloraine,  3  WU*.  213. 

Again — This  order  or  draft  did  not  go  to  extinguish  the  pre- 
cedent bond  debt.  On  the  receipt  of  this  order  by  Smith,  Wood 


JULY  TERM,  1830.  91 


Smith  et  al.  v.  Wood. 


could  not  have  compelled  Smith  to  credit  the  amount  of  it  on  his 
bonds.  The  receipt  given  by  Smith  to  Wood  at  the  time,  pre- 
cludes that  idea.  But  independently  of  that,  the  law  is  well  set- 
tled, that  the  acceptance  of  such  an  order  is  no  payment  of  a  pre- 
cedent debt,  1  Salk.  124 ;  Ward  v.  Evans,  2  Ld.  Ray.  928  ; 
Smith  &  Marshall  v.  Rogers,  17  John.  Rep.  340. 

Our  statute  relating  to  bills  of  exchange  and  promissory  notes, 
has  no  application  to  this  case.  The  enactment  contained  in  it — 
that  the  acceptance  of  an  inland  bill  of  exchange,  in  satisfaction  of  a 
former  debt,  shall  be  accounted  a  payment,  if  the  person  accepting 
it  do  not  take  his  due  course  to  obtain  payment  by  endeavoring 
to  get  the  same  accepted  and  paid,  and  make  his  protest  in  case 
of  non-acceptance  or  non-payment — does  not  affect  the  question. 
This  instrument,  as  we  have  seen,  was  not  a  bill  of  exchange  ; 
and  there  could  be  no  protest  for  non-payment,  for  the  time  of 
payment  was  altogether  indefinite. 

But  it  is  contended  on  the  part  of  the  defendant,  that  although 
this  is  not  a  bill  of  exchange,  strictly  speaking,  under  the  statute 
of  Anne,  and  though  the  acceptance  of  it  did  not  operate  as  a 
.payment  of  the  precedent  debt,  yet  that  Smith,  the  holder,  has 
been  guilty  of  laches.  He  ought  to  have  shown  that  he  had  used 
reasonable  diligence  to  collect  the  money,  and  that  he  gave 
notice  to  Wood  of  the  non-payment;  that  not  having  done 
this,  he  has  by  his  own  conduct  made  the -.acceptor  his  debtor. 
In  support  of  this  position  the  case  of  Chamberlyn  v.  Dela- 
rive,  2  Wils.  353,  is  relied  on.  In  that  case,  the  defendant  be- 
ing indebted  to  the  plaintiff,  in  eighteen  pounds,  for  work  done, 
gave  the  plaintiff  a  note  or  draft  upon  one  Heddy,  desiring  him 
to  pay  the  plaintiff  a  few  days  after  date,  eighteen  pounds,  for  va- 
lue received.  The  plaintiff  took,  and  held  the  draft,  four  months, 
and  never  applied  to  Heddy  to  demand  the  money  of  him. 
Heddy  then  broke  and  became  insolvent.  The  court  held,  that 
the  plaintiff,  by  accepting  this  note  or  draft,  undertook  to  be  duly 
diligent  in  trying  to  get  the  money  of  Heddy,  and  to  apprize  the 
defendant  if  Heddy  failed  in  payment';  and  that  the  defendant 
had  been  deluded  into  a  belief  that  the  plaintiff  had  got  the  mo- 
ney of  Heddy.  The  court  say  further,  there  is  no  reason  appli- 
cable to  the  case  of  holding  a  bill  of  exchange,  that  is  not  appli- 


92  CASES  IX  CHANCERY. 

Smith  et  al.  v.  Wood. 

cable  to  that  case;  the  plaintiff,  by  holding  this  order  four  months, 
has  discharged  the  defendant  of  his  debt,  and  credited  Heddy  in 
his  stead. 

There  can  be  no  doubt,  that  the  true  question  in  the  cause 
now  before  the  court,  is,  whether  the  acceptance  of  the  draft,  un- 
der the  circumstances  attending  it,  imposed  on  Smith  the  duty  of 
using  reasonable  and  due  diligence  in  collecting  it;  and  whether 
such  diligence  was,  or  was  not  used. 

The  case  from  2  Wilton,  goes  far  to  show  the  necessity  of  di- 
ligence on  the  part  of  the  holder:  but  it  differs  from  this,  in  some 
very  important  particulars.  It  was  a  general  draft,  not  payable 
out  of  any  particular  fund,  and  not  dependent  on  any  subsequent 
contingency.  The  credit  was  given  to  the  person  who  was  to 
«pay,  and  not  to  the  property  out  of  which  it  was  to  be  paid.  It 
was  due  at  a  particular  time,  and  notice  of  non-payment  could 
have  been  given,  because  the  time  of  payment  was  fixed.  The 
only  distinction  between  it,  and  a  regular  bill  of  exchange,  was, 
that  it  was  not  payable  to  order.  Still  it  was  a  case  not  within 
the  statute,  and  the  principles  of  mercantile  law  were  not  applied 
to  it  by  the  court,  and  therefore  it  is  entitled  to  some  consideration. 

Clark  v.  Mundal,  1  Salk.  124,  was  before  the  statute  of 
Anne.  The  court  held,  that  the  receiving  of  a  bill  of  ex- 
change, should  never  go  as  payment  of  a  precedent  debt,  al- 
though it  had  lain  long  in  the  hands  of  the  person  receiving  it 
after  it  was  payable,  and  had  been  reckoned  as  money  paid,  and 
in  his  hands. 

The  case  of  Smith  &  Marshall  v.  Rogers,  17  John.  340,  is 
in  principle  very  similar  to  the  present. 

Smith  and  Marshall  sold  to  Rogers  and  Bemont,  in  April, 
1816,  a  quantity  of  merchandise.  On  the  22d  April,  1816,  Be- 
mont wrote  to  them  that  the  partnership  was  dissolved,  and  that 
he  had  assumed  the  demand,  and  would  pay  it  as  soon  as  possi- 
ble. The  plaintiffs  answered,  that  they  were  satisfied  with  that 
arrangement.  Oa  the  9th  July,  Bemont  sent  to  the  plaintiffs  one 
hundred  dollars,  to  be  applied  to  the  payment  of  the  debt.  In 
August,  he  gave  his  own  note  to  the  plaintiffs  for  six  hundred 
dollars,  payable  on  demand,  for  which  the  plaintiffs  gave  him  a 
receipt,  when  paid,  to  be  placed  to  the  credit  of  Rogers  and  Be- 
moiit's  account.  In  November,  1817,  Bemont  became  insolvent, 


JULY  TERM,  1830.  93 

Smith  et  al.  v.  Wood. 

_• 

and  then,  and  not  before,  was  Rogers,  the  partner  of  Bemont,  called 
on  for  the  payment  of  the  balance  of  the  account.  No  suit  was 
brought  against  Bemont,  for  the  recovery  of  the  note,  The  court 
held,  that  taking  .the  note  was  no  discharge  of  the  original  debt ;  that 
the  liability  of  the  firm  still  continued,  and  that  by  the  consent  of 
all  parties,  as  manifested  by  the  receipt  given  ;  that  it  was  the 
duty  of  Rogers  to  see  that  Bemont  complied  with  his  engage- 
ment, as  to  the  payment  of  this  debt ;  and  that  the  plaintiffs  were 
in  no  default,  for  omitting  to  call  on  Rogers  until  Bemont's  in- 
solvency. 

I  think  this  is  the  correct  rule,  as  applicable  to  the  present 
case.  Wood's  debt  to  Smith  remained,  notwithstanding  the  or- 
der. Earl  contracted  with,  or  promised  Wood,  to  pay  to  Smith, 
ten  thousand  dollars  of  Wood's  debt.  It  was  clearly  a  contract 
between  Earl  and  Wood ;  Smith  receives  it  from  Wood  with  the 
acceptance  on  it,  and  promises  to  apply  the  money  in  a  particu- 
lar way,  whenever  Earl  shall  pay  it.  On  whom,  then,  devolved 
the  duty  of  seeing  that  the  money  was  paid?  Could  Smith  sue 
Earl  on  this  acceptance?  At  what  time  could  he  have  brought 
his  suit?  How  was  he  to  make  out  when  Earl  was  in  funds, after 
reimbursing  his  advances  and  prior  acceptances  ?  When  was  he 
bound  to  notify  Wood,  that  Earl  had  not  paid  the  order?  And 
after  such  notification,  what  course  was  he  to  pursue  to  obtain  his 
money?  My  opinion  is,  that,  even  if  Smith  had  made  no  one 
effort  to  procure  the  money  of  Earl,  he  would  not  be  chargeable 
with  any  loss,  and  the  present  claims  upon  the  bonds  would  be  un- 
impaired. This  opinion  applies  equally  to  the  draft  of  1819, 
which  was  similar  in  its  character  to  the  first,  and  on  which  nothing 
has  been  paid. 

Let  us  now  examine,  whether  it  be  true  that  Smith,  after  receiv- 
ing these  drafts,  folded  his  hands,  and  waited  the  movements  of 
Clayton  J£arl,  without  making  any  efforts  to  induce  payment. 

Earl,  in  his  examination,  says,  that  Smith  importuned  him 
very  much  for  money  on  the  drafts,  and  told  witness,  that  from 
his  own  accounts,  there  was  more  than  enough  in  his  hands 
to  pay  the  ten  thousand  dollars.  Witness  replied,  that  he  could 
not  hold  two  securities  at  once;  that  if  he  (Earl)  was  pressed 
to  pay  the  money,  that  Smith  should  assign  over  to  him  one 
of  the  ten  thousand  dollar  bonds.  Samuel  G.  Wright  says,  he 


94  CASES  IN  CHANCERY. 

Smith  et  al.  v.  Wood.  . 

has  often  heard  Smith  and  Wood  talk  about  the  drafts  that 
Wood  had  given  to  Smith,  on  Clayton  Earl ;  and  Wood  would 
ask  him,  why  he  did  not,  sue  Clayton.  These  conversations  oc- 
curred frequently,  and  Wood  would  turn  Smith  off,  by  saying, 
why  don't  you  sue  Clayton.  This  was  during  the  years  1820, 
1821,  1822.  When  Wood  would  ask  Smith  why  he  diet  not  sue 
Clayton,  Smith  would  reply,  that  Clayton  said  he  had  no  funds. 
From  this  evidence,  it  cannot  be  doubted,  that  Smith  made  fre- 
quent applications  to  Earl  for  the  payment  of  the  drafts ;  and 
that  Wood  knew  they  were  unpaid ;  and  knowing  they  were 
unpaid,  and  that  Clayton  refused  payment,  and  alleged  the  want 
of  funds,  it  was  his  duty  to  have  taken  up  the  drafts,  and  made 
Earl  account  to  him  for  the  funds.  Even  if  negligence  could 
lawfully  be  charged,  in  a  case  of  this  kind,  against  Smith,  I  am 
of  opinion  the  evidence  does  not  present  that  gross  default,  which 
would  render  Smith  wholly  responsible  for  the  amount  due  on 
these  drafts,  and  compel  him  to  credit  it  on  the  bonds.  I  do  not 
think,  that  even  Wood  himself,  could  at  that  time,  have  seriously 
pretended  that  Smith,  holding  as  he  did  the  mortgages  in  his 
own  hands,  was  bound  to  enter  into  a  protracted  litigation  with 
Earl,  which  must  have  involved  all  the  accounts  between  Earl  and 
Wood. 

It  appears,  however,  that  on  the  1st  of  March,  1825,  after  the 
various  conversations  that  have  been  mentioned  by  the  witnesses, 
Wood  addressed  a  formal  letter  to  Smith,  enclosing,  as  he  says,  the 
accounts  current,  showing  the  amount  of  funds  in  Earl's  hands,  at 
that  date,  to  be  sixteen  thousand  nine  hundred  and  nineteen  dol- 
lars and  fifty  cents;  and  informing  Smith,  that  he  shall  expect  him 
to  account  for  that  amount,  on  the  three  orders  drawn  by  Wood 
on  Earl,  in  favor  of  Smith — one  for  two  thousand  five  hun- 
dred dollars,  and  the  others  for  ten  thousand  dollars  each.  To 
this,  Smith  replied,  that  he  did  not  hold  himself  liable  for  any 
sum  in  Earl's  hands,  until  he  received  it,  and  then  it  should  be 
applied  to  pay  the  Jones  bonds  ;  and  asks  direction  how  to  pro- 
ceed if  Earl  should  object  to  the  balance.  Very  soon  after,  Smith 
exhibited  the  account  to  Earl,  who  denied  the  correctness  of  it, 
and  alleged,  that  on  a  settlement  there  would  be  a  balance  in  his 
favor. 

If  Wood  really  considered  Smith  liable  for  the  amount  of  these 


JULY  TERM,  1830.  95 

Smith  et  al.  v.  Wood. 

drafts,  (in  the  whole,  twenty-two  thousand  five  hundred  dollars,) 
be  must  have  considered,  that  so  much  was  paid  on  the  bonds  ; 
and  of  course,  that  they  were  reduced  by  that  sum.  One  of 
the  large  bonds  must  then  have  been  paid  off,  and  the  grea- 
ter part  of  another;  and  yet  we  see,  that  on  the  12th  February, 
only  sixteen  days  before,  he  had  made  formal  provision  for  the 
payment  of  the  whole  interest  due  on  the  three  large  bonds,  and 
which  were  assigned  over  to  Hollingshead  and  Platt;  and  actu- 
ally gave  to  Hollingshead  and  Platt  his  own  note  for  the  precise 
amount.  Now,  Wood  must  have  known,  at  that  time,  that  neither 
of  the  drafts  of  ten  thousand  dollars,  had  been  applied  to  these 
bonds.  What  occurred  in  the  interim,  between  the  12th  of  Feb- 
ruary and  the  1st  of  March,  either  to  fix  the  liability  of  Smith,  or 
to  alter  the  views  of  Wood,  does  not  appear.  On  the  whole  view 
of  this  part  of  the  case,  I  am  satisfied,  that  it  was  never  the  inten- 
tion of  the  parties,  that  Smith  should  be  charged  with  the  amount 
of  these  drafts,  unless  the  money  was  received  from  Earl  ;  and 
that  they  were  viewed  by  them  as  special  agreements,  (as  Wood 
himself  calls  them,)  between  Wood,  and  Earl,  and  Smith;  where- 
by, Wood  agreed  to  appropriate  a  certain  portion  of  the  proceeds 
of  the  property,  to  the  payment  of  Smith  ;  Earl  agreed  with  Wood 
to  pay  it  according  to  his  direction  ;  and  Smith  agreed  to  receive  it, 
whenever  it  should  be  paid,  and  make  of  jt  a  proper  application. 

The  third  and  fourth  exceptions  are  disallowed. 

The  fifth  and  seventh  exceptions  were  not  insisted  on. 

Let  the  report  stand  confirmed. 

CITED  in  Llwards  v.  Derrkk&on,  4  Dvtt\.  67. 


CASES    DECIDED 

IN  THE 

COURT   OF  CHANCERY 

OF  THE 

f> 

STATE    OF    NEW- JERSEY, 

OCTOBEE  TERM,  1830. 
ZULE  v.  ZULE. 


Where,  upon  a  bill  filed  by  the  wife,  for  a  divorce,  a  mensa  et  thoro,  on  the 
grounds  of  cruelty  and  desertion,  it  appears  from  the  evidence,  that  the  de- 
fendant had  a  former  wife,  living  in  Scotland,  at  the  time  of  the  marriage 
with  complainant,  a  case  is  presented  entirely  different  from  that  made  by 
the  bill,  and  no  decree  can  be  made.  The  bill  dismissed,  but  without  costs. 

In  such  case,  the  second  marriage  is  invalid  from  the  beginning,  and  absolutely 
void  ;  the  first  contract  still  existed  ;  it  was  not  affected  by  the  fact,  that  the 
husband  and  wife  resided  in  different  quarters  of  the  globe;  nothing  save 
death,  or  the  judicial  sentence  of  some  competent  tribunal,  can  dissolve  the 
marriage  relation. 

A  divorce,  a  mensa  et  thoro,  presupposes  an  existing  valid  marriage  between  the 
parties.  It  is  founded  on  some  fact,  subsequent  to  the  marriage,  and  doea 
not  dissolve  the  relation.  It  consists  with  a  subsequent  reconciliation  of  the 
parties,  as  well  as  subsequent  cohabitation  on  proper  terms. 

A  decree  for  a  divorce,  on  the  ground  of  a  prior  marriage,  is  different  from  de- 
crees of  divorce,  a  vinculo  matrimonii,  for  other  causes.  It  proceeds  on  dif- 
ferent principles,  nnd  is  more  disastrous  in  its  consequences.  It  considers 
the  marriage  null  and  void  ;  the  connection  between  the  parties  meretri- 
cious, and  not  connubial ;  and  the  children  illegitimate,  and  subject  to  all 
the  legal  disabilities  of  illegitimate  issue. 

Semble,  that  in  such  case,  the  complainant  would  be  entitled  to  the  property  she 
possessed  before  the  supposed  marriage,  if  it  remained  unexpended,  or  un- 
disposed of. 

Elizabeth  Zule,  filed  her  bill  of  complaint,  against  William 
Zule;  in  which  she  states,  that  they  were  lawfully  married  in 
New-York,  in  1807 ;  that  the  defendant  treated  her  with  ex- 

96 


OCTOBER  TERM,  1830.  97 

Zule  v.  Zule. 

treme  cruelty  ;  sold  their  property  and  furniture,  and  deserted  her, 
and  has  obstinately  continued  to  desert  her,  for  nine  years,  and 
married  one  Catharine  Gulick,  with  whom  he  has  since  lived;  in 
consequence  of  which  he  was  indicted  for  polygamy,  &c.  ;  and 
prays  for  a  divorce  from  bed  and  board,  and  for  alimony. 

The  defendant,  in  his  answer,  admits  his  marriage  with  the 
complainant,  but  alleges  that,  at  the  time,  he  had  a  wife  living 
in  Scotland,  and  the  marriage  with  complainant  was  void :  he 
denies  that  he  treated  her  with  cruelty,  and  says  that  the  com- 
plainant voluntarily  left  his  h<  use,  and  he  had  solicited  her  to 
return  ;  that,  after  the  death  of  his  first  wife,  he  was  lawfully  mar- 
ried to  Catharine  Gulick. 

Witnesses  were  examined,  and  the  cause  heard  upon  the  bill, 
answer,  and  proofs. 

W.  Hahted,  for  the  complainant. 

The  marriage  with  the  complainant  is  admitted.  There  are 
two  grounds  of  divorce  charged  in  the  bill.  1.  The  marriage 
with  Catharine  Gulick,  which  is  admitted.  2.  Cruelty  and  de- 
sertion, which  are  evasively  denied,  but  sufficiently  proved.  The 
answer  of  the  defendant  discloses  another  ground.  He  says,  that 
the  marriage  with  the  complainant  is  voicJ^  as  he  had  a  wife 
living  in  Scotland  at  the  time.  This  is  not  a  defence,  but  a  gross 
aggravation  of  the  case:  it  exhibits  a  degree  of  turpitude  in  the 
defendant,  of  which  the  complainant  was  not  before  apprized,  and 
is,  of  itself,  sufficient  to  justify  a  divorce,  on  the  ground  of  pre- 
contract. Rev.  L.  667.  Sec.  3;  3  Ken? a  C.  81;  2  Philllm.  R. 
16.  It  is  unconscionable,  that  the  defendant  should  have  had  the 
complainant's  property,  and  not  be  liable  for  her  support.  She  is 
entitled  to  alimony.  . 

P.  I.  Clark,  for  the  defendant. 

We  appear  not  as  the  apologists  of  the  defendant,  but  to 
place  him  on  his  legal  rights.  The  marriage  of  the  defendant 
in  Scotland,  and  that  his  wife  was  living  there  at  the  time  of 

a 


93  CASES  IN  CHANCERY. 

Zule  v.  Zule. 

his  marriage  with  the  complainant  in  New  York,  is  sufficient- 
ly proved.  It  follows,  there  was  no  lawful  marriage  with  the 
complainant.  She  is  not  the  wife  of  the  defendant,  and  has  no 
right  to  come  into  court  in  that  capacity.  The  complainant's 
bill  cannot  be  sustained  :  without  a  lawful  marriage  there  can 
be  no  divorce,  and  without  a  divorce  no  alimony.  2  Phil.  R. 
18,  19. 

G.  D.  Wall,  on  the  same  side. 

The  governing  principle  in  cases  of  divorce,  is,  that  the  al- 
legations or  admissions  of  the  parties,  are  not  to  be  taken,  under 
oath,  or  without  oath.  2  Phil.  R.  164.  There  is  no  proof  of 
cruelty,  and  the  charge  of  desertion  is  sufficiently  answered. 
The  complainant  insists  on  a  valid  marriage  between  the  de- 
fendant and  herself:  on  this,  her  case  entirely  depends.  In  an- 
swer to  this,  it  is  competent  for  us  to  set  up  the  fact  of  a  prior 
marriage  in  Scotland.  2  Phil.  JR.  321.  Without  a  legal  mar- 
riage there  can  be  no  alimony,  even  if  the  court  should  decree  a 
divorce. 

Halsted,  in  reply. 

The  desertion  is  sufficiently  proved,  and  the  facts  constituting 
the  cruelty,  are  admitted  by  the  answer,  which  we  insist  is  good 
evidence.  The  second  marriage,  although  invalid,  may  be  the 
subject  of  divorce.  "  Pre-contract,"  under  our  statute,  is  a  ground 
of  divorce  "  from  the  bond  of  matrimony."  The  court,  therefore, 
have  power  to  divorce,  and  upon  that  may  give  alimony. 

THE  CHANCELLOR.  This  case  presents  a  singular  state  of 
things.  The  complainant  alleges,  that  she  was  lawfully  married 
to  the  defendant,  in  the  year  1807  ;  and  lived,  and  cohabited  with 
him,  a  number  of  years,  as  his  lawful  wife;  that  he  afterwards 
treated  her  cruelly,  spent  all  her  property,  and  deserted  her,  and 
then  married  another  wife,  one  Catharine  Gulick,  on  account  of 
which  he  was  indicted  for  polygamy.  She  prays  a  decree  of 
divorce  from  bed  and  board,  together  with  an  order  for  alimony 
and  maintenance. 


OCTOBER  TERM,  1830.  99 

Zule  v.  Zule. 

The  defendant  admits  the  marriage  to  the  complainant,  in 
1807,  but  sets  up  that  he  was  partially  intoxicated,  and  did  not 
know  what  he  was  about.  That  in  the  year  1796,  he  was  law- 
fully married  iu  Scotland,  to  one  Christiana  Shearer,  by  whom  he 
had  children,  and  who  was  still  living  in  1807,  at  the  time  of  his 
marriage  with  the  complainant;  and  therefore  that  the  marriage 
with  the  complainant  was  wholly  void.  He  denies  the  charges 
of  cruelty  aud  desertion,  and  admits  the  subsequent  marriage 
with  Catharine  Gulick,  and  the  indictment  for  polygamy. 

The  fact  of  the  marriage  in  Scotland  is  fully  supported  ;  and  I 
think  it  is  sufficiently  proved  by  the  testimony,  that  the  first  wife 
was  living  at  the  time  of  the  marriage  with  the  complainant. 
If  so,  that  marriage  was,  in  the  language  of  our  statutes,  invalid 
from  the  beginning,  and  absolutely  void.  The  first  contract  still 
existed.  It  was  not  affected  by  the  fact,  that  the  husband  and 
wife  were  resident  in  different  quarters  of  the  globe.  The  great 
principle  on  this  subject,  as  recognised  in  all  Christian  nations,  is 
that  nothing  save  death,  or  the  judicial  sentence  of  some  com- 
petent tribunal,  can  dissolve  the  marriage  relation.  1  Blao, 
Com.  440. 

It  is  evident,  the  complainant's  bill  is  not  framed  to  meet  such 
a  case.  She  comes  into  court  praying  for  a  separation  or  di- 
vorce, a  mensa  et  thoro.  This  always  presupposes  a  pre-ex- 
isting valid  marriage :  it  is  founded  on  sotne  cause  subsequent 
to  the  marriage,  and  does  not  dissolve  the  relation.  It  consists 
with  a  subsequent  reconciliation  of  the  parties,  as  well  as  a 
subsequent  cohabitation  upon  proper  terms.  All  this  is  totally 
inconsistent  with  the  case  before  the  court;  and  a  decree  of  di- 
vorce, a  mensa  et  thoro,  would  be  as  repugnant  to  the  situation 
and  rights  of  the  parties,  as  it  would  be  to-  the  law  of  the  land, 
and  the  feelings  of  the  court.  But  such  is  the  relief  sought  by 
the  bill ;  while  the  only  relief  that  consists  with  the  case  made, 
is  a  divorce,  a  vinculo  matrimonii,  on  the  ground  of  the 
prior  marriage.  Where  there  is  a  decree  of  divorce  on  this 
ground,  it  is  different  from  other  decrees  of  divorce,  a  vin- 
culo matrimonii,  growing  out  of  other  causes.  It  rests  on 
different  principles,  and  is  more  disastrous  in  its  results.  It 
considers  the  marriage  null  and  void,  and  the  connection  be- 


100  CASES  IN  CHANCERY. 

Hinchman  v.  Admrs.  of  Emans  et  al. 

tween  the  parties  meretricious,  and  not  connubial :  the  children 
are  deemed  illegitimate,  and  subject  to  all  the  legal  disabilities  of 
illegitimate  issue.  Such  decree  cannot  be  made  in  this  case  as  now 
presented. 

Whether,  if  a  proper  case  were  made,  and  such  decree  render- 
ed, the  complainant  would  be  entitled  to  alimony,  it  is  not  ne- 
cessary now  to  consider.  The  rule  in  regard  to  property,  seems 
to  be,  that  the  wife  would  be  entitled  to  receive  what  she  possess- 
ed before  the  supposed  marriage,  if  it  remained  unexpended  or 
undisposed  of. 

The  bill  must  be  dismissed,  but  without  costs. 

CITED  in  Anonymous,  9  C.  E.  Gr.  24. 


HINCHMAN  v.  ADMRS.  OF  EMANS  ET  AL. 


It  is  not  a  necessary  consequence,  when  the  legal  and  equitable  titles  meet  in  the 
same  person,  that  the  equitable  title  becomes  merged  in  the  legal.  When 
the  holder  of  a  mortgage  takes  a  release  or  conveyance  of  the  equity  of  re- 
demption, a  court  of  chancery  will  consider  the  mortgage  as  subsisting, 
when  the  purposes  of  justice  require  it. 

There  are  four  species  of  fraud : — 

1.  Fraud  may  arise  from  facts  and  circumstances  of  imposition.  , 

2.  It  may  be  apparent  from  the  intrinsic  value  and  subject  of  the  bargain  it- 

self—such as  no  man  in  his  senses,  and  not  under  delusion,  would  make  on 
the  one  hand,  and  as  no  honest  or  fair  man  would  accept  on  the  other. 

3.  It  may  be  inferred  from  the  circumstances  and  condition  of  the  parties  con- 

tracting ;  for  it  is  as  much  against  conscience  to*  take  advantage  of  a  man's 
weakness  or  necessity,  as  his  ignorance  :  And, 

4.  It  may  also  be  collected  from  the  nature  and  circumstances  of  the  transaction, 

as  being  an  imposition  on  third  persons. 

"Where  A.,  who  held  a  mortgage  and  bonds,  given  for  purchase  money,  in  1814, 
voluntarily  relinquished  the  mortgage,  cancelled  the  bonds,  and  took 
another  mortgage  for  the  same  debt  in  1817,  knowing  that  an  intervening 
mortgage  on  the  same  premises,  given  in  1816,  was  outstanding  ;  and  upon 
a  sale  of  the  premises  in  1818,  consented  to  give  up  his  mortgage  of  1817: 
and  that  B.,  the  assignee  of  the  outstanding  mortgage  of  1816,  should  take  a 
new  mortgage  on  the  premises  for  his  debt,  as  a  first  lien ;  and  he,  (A.) 
•would  take  another  mortgage,  in  place  of  his  mortgage  of  1817,  as  a  second 
lien  on  the  premises — and  the  two  mortgages  were  executed  accordingly, — 
B.'s  mortgage  bearing  date  on  the  1st  of  April,  and  A.'s  mortgage  on  the 
2d  April,  1818,  and  recorded  in  the  same  order,  so  as  to  give  priority  to  tho 


OCTOBER  TERM,  1830.  101 

Hinchman  v.  Admrs.  of  Emans  et  al. 

mortgage  of  B. : — although  A.  was  infirm  at  the  time,  and  his  faculties  in 
some  measure  impaired,  yet  being  attended  by  a  friend  who  acted  as  hia 
agent,  and  assisted  in  the  transaction  of  the  business,  when  the  order  of 
priority  was  spoken  of  and  understood :  even  if  the  parties  were  mistaken 
in  the  principle  on  which  they  acted,  (that  B.'s  mortgage  of  1816  was  le- 
gally entitled  to  a  priority  over  A.'s  mortgage  of  1817,)  without  any  con- 
cealment or  misrepresentation  on  the  part  of  B.,  it  does  not  come  within 
any  of  the  descriptions  of  fraud  ;  and  A.  or  his  representatives  are  not  en- 
titled to  have  B.'s  mortgage  of  1st  April,  1818,  postponed,  so  as  to  give 
priority  to  A.'s  mortgage  of  the  2d  of  the  same  month. 

Where  the  change  of  securities  was  voluntary,  and  it  does  not  appear  that  any 
artifice  was  made  use  of,  to  induce  him  to  take  the  second  mortgage,  A.  can- 
not be  permitted  to  disavow  or  avoid  the  operation  of  an  agreement  entered 
into  with  a  full  knowledge  of  the  facts,  on  the  ground  of  his  ignorance  of 
the  legal  consequences  flowing  from  these  facts. 


Th^.  bill  in  this  case,  was  filed  by  Guy  M.  Hinchman, 
against  Peter  Wort  man  and  Isaac  Emans,  administrators  of 
Nicholas  Emans,  deceased,  and  the  heirs  of  said  Nicholas  Emans, 
defendants. 

The  object  of  the  suit  was  to  obtain  a  foreclosure,  and  sale  of 
certain  mortgaged  premises,  in  the  county  of  Morris.  The  mort- 
gage on  which  the  bill  was  filed,  was  given  by  Japhet  B.  Chi- 
dester,  to  one  Cummins  Oliver,  to  secure  the  payment  of  one 
thousand  one  hundred  and  thirty  dollars,  and  bore  date  on  the 
1st,  and  was  registered  on  the  6th  of  April,  1818.  Accom- 
panying the  mortgage,  were  four  several  b^nds,  given  by  Chi- 
dester  to  Oliver,  for  two  hundred  and  eighty-two  dollars  and  fif- 
ty cents,  each.  On  the  1st  of  April,  1824,  Oliver  and  wife,  in 
consideration  of  one  thousand  five  hundred  and  seventy-five  dol- 
lars, assigned  all  their  interests  in  the  bonds,  and  mortgaged  pre- 
mises, to  the  complainant,  subject  to  a  certain  agreement,  between 
the  said  Chidester  and  Oliver,  of  the  16th  of  March,  1824;  by 
which  Chidester  and  wife,  released  to  Oliver,  their  right,  or  equi- 
ty of  redemption,  in  the  mortgaged  premises, — and  Oliver  releas- 
ed to  Chidester,  all  claim  and  demand,  as  against  his  personal 
property,  of  one  of  the  bonds.  On  the  1st  of  April,  1824,  the 
complainant  took  possession  of  the  property,  and  received  the 
rents  and  profits  thereof,  which  have  all  been  expended,  as  he  al- 
leges, in  necessary  repairs.  The  bill  then  charged,  that  the  com- 
plainant had  been  informed,  that  the  said  Chidester,  on  or  about 


102  CASES  IN  CHANCERY. 

Hinchman  v.  Admrs.  of  Emans  et  al. 

the  2d  day  of  April,  1818,  executed  an  indenture  of  mortgage  to 
one  Nicholas  Emans,  on  the  same  premises,  to  secure  the  pay- 
ment of  one  thousand  and  fifty-five  dollars.  Emans  died  in  May, 
1821,  intestate,  and  letters  of  administration  upon  his  estate  were 
granted  to  Peter  Wortman  and  Isaac  Emans. 

The  defendants,  in  their  answer,  admitted  that  the  mortgage 
and  bonds  were  executed  to  Oliver ;  but  denied  that  they  were 
executed  on  the  1st  day  of  April,  or  for  a  valuable  consideration  ; 
and  insisted  that  they  were  fraudulent  and  void,  and  not  entitled 
to  priority  of  payment,  as  against  the  bond  and  mortgage  of  the 
defendants.  They  alleged  that,  on  the '1st  day  of  April,  1818, 
the  said  Nicholas  Emans  held  a  mortgage  on  said  premises,  from 
one  Jonathan  Oliver  and  wife,  given  on  the  27th  day  of  May, 
1817,  to  secure  the  payment  of  one  thousand  and  fifty-five  dol- 
lars and  ninety-four  cents,  being  part  of  the  consideration  money, 
for  which  Emans  had  theretofore  sold  the  said  premises.  That 
after  the  execution  and  delivery  of  this  last  mentioned  mortgage, 
Jonathan  Oliver  became  embarrassed  in  his  affairs,  and  gave  a 
deed  for  the  property  to  Cummins  Oliver,  the  consideration  of 
which  was,  that  Cummins  Oliver  was  to  pay  off  the  debt  to- 
Emans.  On-the  1st  day  of  April,  1818,  this  mortgage  was  still 
outstanding  and  unpaid;  and  on  the  same  first  day  of  April, 
Cummins  Oliver  conveyed  the  mortgaged  premises  to  Japhet  B. 
Chidester,  and  proposed  to  Emans,  who  was  then  feeble  and  in- 
firm, that  he  should  take  the  bonds  and  mortgage  of  Chidester, 
in  the  place  and  stead  of  the  bonds  and  mortgage  of  Jonathan 
Oliver,  for  the  like  amount,  and  with  the  same  priority  of  lien, 
that  he  then  had  and  held.  That,  to  quiet  all  fears,  and  the 
more  successfully  to  execute  and  accomplish  his  fraudulent  de- 
signs, Cummins  Oliver  executed,  and  gave  to  Emans,  a  bond  of 
indemnity,  in  the  sum  of  two  thousand  dollars,  to  indemnify  him 
against  all  incumbrances  on  the  premises  from  the  19th  of  April, 
1814,  to  the  said  1st  of  April,  1818.  That  the  said  bonds  and 
mortgage  of  Chidester,  were  accordingly  given  for  one  thousand 
and  fifty-five  dollars,  and  dated  on  the  2d  of  April,  instead  of 
the  1st,  without  the  knowledge  of  the  said  Emans.  The  de- 
fendants further  stated,  that  the  bonds  and  mortgage  given  to 
Cummins  Oliver,  and  mentioned  in  the  bill,  were  not  discover- 


OCTOBER  TERM,  1830.  103 

Hinchman  v.  Admrs.  of  Emans  et  al. 

eel  till  afterwards,  having  been  artfully  concealed  from  Emans  : 
that  they  were  given  under  a  pretended  claim  set  up  by  Cum- 
mins Oliver,  to  the  said  mortgaged  premises,  by  virtue  of  a  mort- 
gage given  by  one  Jason  King  to  Jonathan  Oliver,  which  had 
come  into  the  hands  of  Cummins  Oliver,  and  which  the  defen- 
dants aver  to  be  fraudulent  and  void,  having  been  given  by  a 
person  who  never  had  any  title  to  the  premises,  and  this  known 
to  the  said  Cummins  Oliver,  who  fraudulently  caused  the  mort- 
gage of  Chidester  to  him,  to  be  recorded  before  the  mortgage  to 
Emans,  and  is  now  seeking  through  the  cover  of  an  assignment, 
without  consideration,  to  execute  his  fraudulent  purpose.  They 
stated  further,  that  the  complainant  paid  no  consideration  for  the 
assignment,  and  that  he  had  full  notice  of  the  mortgage  of  Oliver 
and  Chidester  to  Emans  ;  that  he  was  present  on  the  1st  of  April, 
1818,  when  the  arrangement  took  place  between  Emans  and 
Cummins  Oliver,  and  subscribed  his  name  as  a  witness  to  the 
bond  of  indemnity.  The  defendants  admitted  that  the  bonds  of 
Jonathan  Oliver  to  Emans  were  cancelled,  but  not  the  mortgage, 
which  is  now  in  their  possession  ;  and  they  insisted  that  they  ought 
to  be  ordered  to  stand  as  an  existing  and  prior  lien  on  the  prop- 
erty— or  that  the  bonds  and  mortgage  from  Chidester  to  Emans 
should  be  first  paid. 

Evidence  was  taken  on  both  sides,  and  the  cause  came  on  to  be 
heard  on  the  pleadings  and  proofs.  *• 

Van  Arsdale,  sen.  for  the  complainant. 

The  mortgage  tinder  which  we  claim,  was  given  by  J.  B.  Chi- 
dester to  Cummins  Oliver,  and  by  him  assigned  to  complainant. 
It  is  dated  1st  April,  1818,  and  recorded  6th  April.  The  defen- 
dants' mortgage  was  given  by  Chidester  to  Emans,  and  is  da- 
ted 2d  April,  1818,  and  recorded  the  8th  April:  upon  the  same 
premises,  in  point  of  date  and  registry,  the  complainant  has  the 
prior  right.  Before  the  execution  of  these  mortgages,  C.  Oliver 
had  two  bonds  and  a  mortgage,  given  by  J.  King,  of  21st  May, 
1816,  and  N.  Emans  held  bonds  and  a  mortgage  given  by 
Jonathan  Oliver,  on  the  27th  of  May,  1817,  upon  the  same  premi- 
ses. C.  Oliver  then  had  the  oldest  mortgage.  After  the  sale  to 
Chidester,  on  the  1st  April,  1818,  the  parties  met,  to  give  up  the 


104  CASES  IN  CHANCERY. 

Hinchman  y.  Admrs.  of  Emans  et  al. 

old  securities  and  take  new  mortgages  in  lieu  of  them.  It  was  then 
understood  and  agreed,  that  C.  Oliver's  mortgage  was  to  have 
priority,  and  Emans's.to  be  the  second  lien  on  the  property;  and 
the  present  mortgages  were  executed  accordingly. 

The  first  point  of  defence,  is,  that  the  complainant's  mortgage 
is  falsely  dated  on  the  1st  April,  when  in  fact  it  was  executed  on 
the  2d  of  April.  The  evidence  (to  which  the  counsel  here  ad- 
verted) proves  that  the  mortgages  were  executed  on  the  days 
they  respectively  bear  date.  The  second  point  is,  that  the  com- 
plainant's mortgage  was  not  given  for  a  valuable  consideration. 
C.  Oliver  had  paid  the  money  and  taken  an  assignment  of  the 
King  mortgage,  and  two  bonds  of  1816,  and  paid  other  debts  for 
Jonathan  Oliver,  who  afterwards  released  to  him  the  equity  of  re- 
demption of  the  mortgaged  premises;  he  conveyed  to  Chidester, 
and  the  mortgage  of  1st  April,  1818,  is  for  purchase  money  on 
that  sale.  But  the  defendants  say,  King,  who  gave  the  bonds 
and  mortgage  of  1816,  was  not  the.  person  who  had  the  title, 
and  the  bonds  and  mortgage  were  fraudulent:  this  they  are  bound 
to  prove.  Whatever  is  set  up  in  avoidance  of  the  plaintiff's  claim, 
must  be  proved.  2  John.  C.  R.  89 ;  3  Mason,  390.  The  only 
witness  adduced  in  support  of  this  allegation,  is  proved  to  be 
unworthy  of  credit,  and  contradicted  as  to  facts  by  other  witness- 
es and  documents  that  establish  the  validity  of  the  mortgage. 
The  third  ground  of  defence  is,  that  our  mortgage  was  fraudu- 
lently procured  to  be  first  registered.  The  witnesses  present  at 
the  execution  prove  that  our  mortgage  was  to  have  priority. 
But  if  the  transaction  of  1st  April,  1818,  was  fraudulent,  things 
ought  to  be  restored  to  their  original  situation  ;  we  should  then 
stand  upon  the  King  mortgage,  of  1816,  and  still  have  the  priori- 
ty. Another  objection  will  probably  be  raised,  that  Emans  was 
incapable  of  business :  this  must  also  fail.  From  the  evidence  it 
appears  he  understood  and  assented  to  what  was  done.  Wort- 
man,  now  one  of  the  defendants,  was  then  acting  as  his  agent, 
and  assisted  in  transacting  the  business.  Emans  and  his  re- 
presentatives are  bound  by  it.  Paley  on  Ag.  2,  138,  142,  143, 
249 ;  1  Livermore,  A.  45,  349 ;  2  Liver.  306,  249.  They 
further  pretend  the  assignment  to  the  complainant  was  fraudu- 
lent. The  evidence  shows  that  the  assignment  was  bona  fide, 
and  the  complainant  took  the  mortgage  in  his  own  right. 


OCTOBER  TERM,  1830.  106 


Hinchman  v.  Admrs.  of  Emans  et  al. 


they  said  that  the  complainant  had  notice  of  all  these  matters :  of 
this  there  is  no  evidence. 

T.  Frelinghuysen,  for  the  defendants. 

"We  complain  that  an  imposition  was  practised  on  a  feeble  old 
man,  unable  to  take  care  of  his  rights.  The  argument  for  the 
complainant,  is,  that  the  King  bonds  and  mortgage  were  a  sub- 
sisting lien  on  the  property  in  1818,  aud  the  rights  as  to  priority 
were  not  changed  by  the  new  securities.  We  insist  that  the 
King  mortgage  was  not  a  subsisting  lien  in  1818.  The  first  ti- 
tle paper  in  evidence  is  a  mortgage  on  these  premises,  given  by 
Howell  to  Emans,  in  1809.  Emans  bought  the  property  at  she- 
riff's sale  in  1812,  and  in  June,  1814,  sold  it  to  Jonathan  Oliver 
for  one  thousand  and  fifty  dollars,  and  took  the  mortgage  of  that 
date  for  the  purchase  money.  J.  Oliver  conveyed  it  to  King  in 
May,  1816,  and  took  of  him  a  mortgage  and  four  bonds,  two  of 
which  Emans  got,  probably  as  collateral  security.  On  the  3d 
May,  1817,  King  re-conveyed  the  property  to  J.  Oliver,  who  was 
to  take  up  and  deliver  to  King  his  two  bonds  outstanding,  said 
to  have  been  pledged  to  Condict  and  Halliday ;  and  Cummins 
Oliver  became  security  for  his  performance.  On  the  27th  May, 
1817,  Jonathan  Oliver  renewed  his  mortgage  to  Emaus  for  the 
original  debt  which  accrued  for  the  purchase  money,  in  1814 ; 
for  which  Emans  always  retained  a  lien  on  the  premises,  and 
this  mortgage  could  not  be  affected  by  the  intermediate  mort- 
gage of  1816,  which  was  given  subject  to  our  lien.  If  Cummins 
Oliver  paid  over  the  King  bonds  to  Halliday,  the  bonds  ought  to 
have  been  delivered  up  to  King,  and  the  lien  of  the  mortgage  was 
extinguished :  instead  of  which,  Oliver  took  an  assignment  of  the 
bonds  and  mortgage.  If  this  was  bona  fide  upon  Jonathan  Oli- 
ver's releasing  the  equity  of  redemption  to  Cummins  Oliver,  the 
equitable  and  legal  estates  became  united  in  him ;  the  mortgage 
interest  became  merged  in  the  legal  estate,  and  the  lien  of  the  King 
mortgage  was  extinguished.  We  complain,  that  after  all  this,  they 
should  prevail  upon  this  infirm  old  man,  Emans,  to  give  up  his 
lien  and  suffer  a  prior  mortgage  to  be  given  to  Cummins  Oliver, 
which  would  sweep  away  the  whole  property.  The  witnesses 
assign  no  reason  why  the  mortgage  to  Emans  was  postponed, 


100  CASES  IN  CHANCERY. 

Hinchman  v.  Admrs.  of  Emans  et  al. 

except  that  it  might  have  been  that  the  King  mortgage  was  the 
oldest;  and  one  of  them  declares,  he  cannot  say  that  Emans  un- 
derstood the  mortgage  to  Oliver  was  to  have  priority,  or  that  he 
heard  the  instructions  given  to  the  scrivener.  There  was  no 
money  paid,  no  consideration  to  induce  Emans  to  give  up  his 
priority,  and  no  one  can  account  for  it.  This  amounts  to  a  le- 
gal fraud.  1  Fonb.  Eq.  124,  164.  No  man  in. his  senses,  and 
not  under  some  delusion,  could  have  been  induced  to  make  such 
a  contract.  His  situation,  as  described  by  the  witnesses,  render- 
ed him  liable  to  imposition,  and  from  the  fact  of  his  incapaci- 
ty, and  nature  of  this  transaction,  the  court  would  infer  that 
some  undue  means  had  been  used.  "Wort man,  as  a  general 
agent,  had  no  power  to  deal  away  the  vested  rights  of  Emans. 
They  dealt  with  Emans,  not  with  "Wortman.  He  got  no  pow- 
er of  attorney,  till  September,  1819.  "We  are  in  possession  of 
two  facts.  1.  That  we  had  the  prior  lien  on  the  1st  April, 
1818.  2.  That  Emans's  mortgage  was  postponed  by  this  ar- 
rangement, at  a  time  when  he  was  incapable  of  transacting  bu- 
siness. But  again,  the  mortgage  of  1814  is  still  in  our  hands, 
uncancelled.  Taking  the  after  mortgage  is  no  extinguishment. 
When  two  securities  are  of  equal  degree,  the  one  does  not  extin- 
guish the  other.  2  Bac.  Ab.  Tit.  Extinguishment.  It  must 
be  averred  and  proved,  that  a  higher  security  is  taken  in  satis- 
faction of  a  lesser;  there  is  no  presumption  in  that  case,  much 
less  when  the  securities  are  equal.  1  Mason,  506.  Although 
other  points  in  the  answer  are  unsupported,  that  does  not  im- 
pair our  defence  on  the  grounds  I' have  stated.  We  pray  to  be 
restored  to  our  securities  as  they  stood  on  the  1st  of  April,  1818. 

Van  Arsdale,  in  reply. 

The  bonds  of  1814  were  given  up  by  Emans  for  the  King  bonds; 
these  were  given  up,  and  the  Oliver  bonds  of  1817  taken.  On 
the  1st  April,  1818,  there  were  no  other  securities  brought  for- 
ward, than  the  King  bonds  and  mortgage  of  1816,  by  Cum- 
mins Oliver,  and  the  J.  Oliver  bonds  and  mortgage  of  1817, 
by  Emans.  It  is  not  a  question  of  substitution  and  extinguish- 
ment of  one  security  by  the  mere  taking  of  another ;  but  of  can- 
cellation, and  discharge  of  the  lien.  They  say  Emans  cancel- 


OCTOBER  TERM,  1830.  107 

Hinchman  v.  Admrs.  of  Emans  et  al. 

led  the  bonds  of  1814,  but  not  the  mortgage:  the  bonds  being 
cancelled,  the  lieu  of  the  mortgage  was  gone;  there  was  no  lien  of 
1814  in  existence,  on  the  1st  April,  1818.  Emans  was  then  of 
sufficient  capacity.  Some  of  the  witnesses  on  this  point  speak  of 
his  capacity  at  an  after  period,  which  is  of  no  importance.  The 
matter  of  priority  was  distinctly  understood  and  agreed  to  at  that 
time.  Wortman  was  the  general  agent  of  Emans;  it  was  not 
necessary  he  should  have  a  power  of  attorney.  They  took  the  act 
of  the  agent,  and  Emans  adopted  it,  and  put  the  mortgage  on 
record.  The  defence  set  up  is  fraud  ;  the  incapacity  is  brought  for- 
ward as  auxiliary.  The  fraud  alleged  in  the  answer  is*  wholly  dis- 
proved, and  the  defendants  are  obliged  to  rely  on  a  circumstance 
not  before  thought  of. 

THE  CHANCELLOR.  The  pleadings  present  two  or  three  points 
to  which  the  evidence  has  been  directed. 

First — -It  is  alleged  that  the  complainant's  mortgage  was  frau- 
dulently dated  the  1st  of  April,  when  in  truth  it  was  executed  on 
the  2d  ;  or  that  the  defendant's  mortgage  was  fraudulently  dated 
the  2d  of  April,  when  in  truth  it  was  executed  on  the  1st.  The 
bonds  and  mortgage  of  complainant  are  dated  on  the  1st: 
those  given  to  Emans  are  dated  on  the  2d.  The  mortgages 
are  acknowledged  of  the  same  days  that  they  respectively  bear 
date.  There  is  no  evidence  to  show  that  these  acknowledg- 
ments are  falsely  dated.  It  appears  by  the  testimony  of  John 
R.  Hinchman,  the  scrivener,  that  while  he  was  drawing  the  wri- 
tings, he  was  directed  by  Cummins  Oliver,  to  date  his  mortgage 
and  bonds  one  day  the  oldest.  Emans  was  present  at  the  time, 
as  was  also  Peter  Wortman,  one  of  the  defendants.  Cummins 
Oliver  spoke  loud  enough  to  be  heard  by  all.  Wortman  was  as- 
sisting in  the  business  of  Emans,  his  father-in-law,  and  drew  some 
of  the  writings.  The  testimony  of  Cummins  Oliver  is  very  full  as 
to  this  matter.  He  says  the  papers  were  acknowledged  on  differ- 
ent days,  and  that  it  was  talked  of  over  and  over  again,  and  well 
understood  that  his  mortgage  should  bear  date  first  and  have  the 
priority.  The  defendants'  allegation  in  this  behalf  is  not  sustained 
by  proof. 

Secondly — It  is  alleged  that  the  mortgage  from  Chidester  to  Oli- 


108  CASES  IN  CHANCERY. 

Hinchman  v.  Admrs.  of  Emans  et  al. 

ver  was  without  consideration,  and  therefore  fraudulent  as  against 
the  defendants. 

The  mortgage  was  given  from  Chidester  to  Cummins  Oliver,  to 
secure  the  payment  of  one  thousand  one  hundred  and  thirty  dol- 
lars. It  appears  that  this  property,  in  1814,  belonged  to  Nicholas 
Emans,  who  purchased  it  at  sheriff 's  sale.  In  1814,  he  sold  it  to 
Jonathan  Oliver,  and  took  a  mortgage  on  it  for  one  thousand  and 
five  dollars.  Afterwards,  on  the  21st  of  May,  1816,  Jonathan  Oli- 
ver sold  the  property  to  one  Jason  King,  for  three  thousand  dol- 
lars, who  gave  a  mortgage  and  four  bonds  for  the  purchase  money. 
Two  of  these  bonds  were  passed  to  Emans,  and  two  of  them  Oliver 
passed  elsewhere.  Jason  King  soon  after  conveyed  the  property 
back  to  Jonathan  Oliver,  to  wit,  on  the  3d  May,  1817.  On  the 
27th  of  May,  1817,  Oliver  gave  a  new  mortgage  to  Emans  for  one 
thousand  and  fifty-five  dollars  and  ninety-four  cents,  and  the  bonds 
accompanying  the  mortgage  of  1814  were  cancelled. 

It  appears  further,  by  the  testimony  of  Cummins  Oliver,  (for 
there  is  no  other  evidence  on  the  subjecl,)  that  when  Jason  King 
re-conveyed  the  premises  back  to  Jonathan  Oliver,  two  of  the  four 
bonds  which  he  had  given  to  Jonathan  Oliver  were  outstanding, 
and  Cummins  Oliver,  with  one  Hart,  became  security  for  the  deli- 
very of  those  bonds  to  King.  Jonathan  Oliver  represented  that 
they  had  been  pledged,  and  that  about  twenty  dollars  would  redeem 
them.  One  was  represented  to  be  in  the  hands  of  Jeduthan  Con- 
diet,  and  one  in  the  hands  of  Samuel  Halliday,  late  sheriff  of  Mor- 
ris. Cummins  paid  eight  hundred  and  twenty-four  dollars  to  take 
up  these  bonds,  and  upon  this,  Halliday  assigned  the  two  bonds 
and  the  mortgage  to  Cummins  Oliver.  Besides  this,  he  paid  other 
debts  for  Jonathan  Oliver,  to  the  amount  of  two  hundred  and  fifteen 
dollars,  making  in  all  one  thousand  and  thirty-nine  dollars.  Cum- 
mins alleges  that  he  held  these  bonds  and  the  mortgage  until  he 
got  the  mortgage  from  Chidester,  in  1818.  On  the  15th  of  Sep- 
tember, 1817,  Jonathan  Oliver  sold  the  property  to  Cummins  Oli- 
ver, and  gave  him  a  deed  ;  and  on  the  1st  April,  1818,  Cummins 
Oliver  conveyed  the  property  to  Japhet  B.  Chidester,  for  two  thou- 
sand seven  hundred  dollars,  or  thereabouts. 

From  this,  it  would  seem,  that  the  property  was  conveyed  by 
Jonathan  Oliver  to  Cummins  Oliver  in  good  faith  ;  he  being  the 


OCTOBER  TERM,  1830.  109 


Hinchman  v.  Admrs.  of  Emans  et  al. 


owner  of  the  property,  sold  to  Chidester,  and  the  mortgage  given 
to  him  by  Chidester  for  the  balance  of  the  purchase  money,  was 
a  mortgage  for  a  valuable  consideration.  It  is  not  material  now 
to  inquire,  whether  the  mortgage  and  bonds  originally  given  by 
King  and  assigned  over  by  Halliday  to  Cummins  Oliver,  were 
existing  liens  on  the  property  on  the  1st  of  April,  1818;  or  whe- 
ther or  not  the  transaction  between  Oliver  and  King  was  valid. 
It  is  sufficiently  proved,  that  Cummins  Oliver  advanced  upwards 
of  one  thousand  dollars  for  Jonathan  Oliver,  and  in  satisfaction  of 
his  debts.  This  was  a  sufficient  consideration  for  the  convey- 
ance from  Jonathan  to  Cummins  Oliver,  subject  to  the  mortgage 
of  Emans,  which  was  upwards  of  one  thousand  dollars.  There 
is  no  pretence  of  proof  that  this  sale  was  made  subject  to  the 
trust  (to  pay  the  debt  to  Emans)  mentioned  in  the  answer. 
Cummins  Oliver  swears  it  was  an  absolute  sale;  and  in  the  ab- 
sence of  all  evidence  on  the  part  of  the  defendants  to  the  contra- 
ry, it  must  be  so  considered  :  and  Cummins,  being  the  absolute 
owner,  his  conveyance  of  the  property  to  Chidester,  must  be  ta- 
ken to  be  a  fair  and  bona  fide  transaction.  The  second  ground 
of  the  defendants  is  not  supported. 

Thirdly — The  defendants  insist,  in  the  next  place,  that  advan- 
tage must  have  been  taken  of  the  imbecility  of  Emans ;  that  the 
giving  up  of  his  prior  lien  could  only  have  been  induced  by  some 
collusion  or  contrivance;  that  it  amounts «to  a  legal  fraud,  and 
therefore  the  Emans  mortgage  should  be  preferred.  In  regard 
to  the  prior  lien,  the  complainant  denies  the  pretension  of  the  de- 
fendants, and  insists  that  the  King  mortgage  then  in  the  hands 
of  Cummins  Oliver,  dated  in  1816,  was  a  lien  on  the  property; 
the  mortgage  was  certainly  produced  at  the  time  the  new  mort- 
gages were  given,  and  if  it  was  then  operative  on  the  property,  it 
was  prior  to  the  mortgage  produced  there  by  Emans,  because 
that  was  given  by  Oliver  in  1817,  and  the  former  bonds  cancel- 
led. It  is  contended,  however,  that  the  King  mortgage  was  not 
a  subsisting  lien  on  the  property  in  1818  ;  and  therefore  that  the 
mortgage  of  Emans  from  Jonathan  Oliver  was  the  oldest  lien. 
However  fraudulent  the  conveyances  between  Oliver  and  Jason 
King  may  have  been,  I  doubt  whether  the  defendants  can  set  it 
up  at  this  time  as  against  the  complainant.  Emans  had  notice 
of  this  conveyance,  and  of  the  King  mortgage.  He  actually  took 


110  CASES  IN  CHANCERY. 

Hinchman  T.  Admrs.  of  Etnans  et  al. 

two  of  the  four  bonds  accompanying  the  mortgage,  probably  as 
collateral  security  :  he  made  no  complaint  of  fraud  at  that  time. 
The  conveyance  did  not  disturb  the  lien  of  his  mortgage.  The 
taking  of  the  two  bonds  from  King,  the  owner  of  the  property, 
was,  if  any  thing,  a  sanction  on  the  part  of  Emans  of  the  lawful- 
ness of  his  right.  Two  of  the  bonds  and  the  mortgage  were  as- 
signed over  to  Cummins  Oliver,  as  we  have  seen,  for  a  valuable 
consideration ;  and  although  he  afterwards  purchased  of  Jona- 
than Oliver  the  equity  of  redemption,  I  am  not  prepared  to  say 
that  he  was  not  warranted  in  retaining  the  mortgage  as  a  securi- 
ty for  his  title.  It  is  not  a  necessary  consequence,  when  the  le- 
gal and  equitable  titles  unite  in  the  same  person,  that  the  equita- 
ble title  becomes  merged  in  the  legal.  A  court  of  chancery  will 
consider  the  mortgage  as  subsisting,  when  the  purposes  of  justice 
require  it.  I  incline  to  the  opinion  that  the  King  mortgage  was 
alien  on  the  property  on  the  1st  of  April,  1818,  when  the  two 
mortgages  now  in  question  were  given ;  but  as  the  view  which 
I  take  of  the  case  renders  it  unnecessary  to  decide  that  point,  I 
desire  to  be  understood  as  expressing  no  definite  opinion  upon  it. 

Admitting  that,  in  strictness  of  law,  the  King  mortgage  in  the 
hands  of  Cummins  Oliver  was  no  lieu  on  the  property ;  are  the 
circumstances  attending  the  execution  and  delivery  of  these  mort- 
gages, of  such  character  as  to  call  for  the  equitable  interference  of 
this  court  to  alter  what  appears  now  to  be  the  legal  rights  of  the 
parties?  The  power  of  the  court  is  undoubted,  and  in  all  proper 
cases  it  should  be  fearlessly,  though  cautiously  exercised. 

There  are  various  species  of  fraud  which  are  the  foundation  of 
equitable  relief.  They  are  admirably  classified  by  Lord  Hard- 
wicke,  in  the  case  of  Chesterfield  v.  Jansen,  2  Ves.  155. 
Fraud  may  arise  from  facts  and  circumstances  of  imposition :  it 
may  be  apparent  from  the  intrinsic  value  and  subject  of  the  bar- 
gain itself,  such  as  no  man  in  his  senses,  and  not  under  delusion, 
would  make  on  the  one  hand,  and  as  no  honest  or  fair  man 
would  accept  on  the  other :  it  may  be  inferred  from  the  circum- 
stances "and  condition  of  the  parties  contracting,  for  it  as  much 
against  conscience  to  take  advantage  of  a  man's  weakness  or  ne- 
cessity, as  his  ignorance ;  and  it  may  also  be  collected  from  the 
nature  and  circumstances  of  the  transaction,  as  being  an  imposi- 


OCTOBER  TERM,  1830.  Ill 

Hinchm»n  v.  Admrs.  of  Emans  et  al. 

tion  on  third  persons.  Will  this  case  come  properly  under  any  of 
these  species  of  fraud  ?  Does  the  fact  that  a  priority  was  given  to 
the  complainant's  mortgage,  warrant  the  inference  of  fraud  and 
circumvention?  It  is  very  evident,  that  whether  in  strictness  the 
King  mortgage  was  a  lien  or  not  on  the  property  on  the  1st  of 
April,  1818,  it  was  so  considered  by  the  parties  :  they  acted  on  that 
supposition  :  both  parties  may  have  been  mistaken,  without  sub- 
jecting themselves  to  the  imputation  of  fraud.  If  Emans  was 
mistaken  in  regard  to  this  matter,  and  acted  uuder  that  mistake, 
without  any  improper  concealment  or  misrepresentation  on  the  part 
of  Oliver,  and  when  he  might  have  been  advised  on  the  subject  if 
he  had  taken  the  precaution ;  can  he  come  now  into  a  court  of 
equity  for  relief?  It  does  not  appear  that  he  was  constrained  io 
come  into  this  "  new  arrangement,"  as  it  is  called.  He  had  his  old 
mortgage  of  1817.  The  change  of  .the  securities  was  voluntary,  so 
far  as  we  know ;  and  it  does  not  appear  that  any  artifice  was  made 
use  of,  to  induce  him  to  take  the  second  mortgage.  Under 
these  circumstances,  he  cannot  be  permitted  to  disavow  or  avoid 
the  operation  of  an  agreement  entered  into  with  a  full  knowledge 
of  the  facts,  on  the  ground  of  ignorance  of  the  legal  consequences 
flowing  from  those  facts.  Shotwell  v.  Murray,  1  Johns.  C.  R. 
516. 

Cummins  Oliver  assigns,  as  the  reason  why  the  first  mortgage 
was  given  to  him  and  the  second  one  to  3£mans,  that  the  King 
mortgage  was  older  than  the  one  Emans  then  held  ;  and  there- 
fore he  had  a  priority.  This  was  doubtless  the  opinion  of  Wort- 
man,  the  friend  of  Emans.  He  stated  that  he  thought  they 
(Emans  and  himself)  ought  to  have  the  oldest  claim ;  and  he 
had  been  at  a  good  deal  of  trouble  and  expense  in  searching 
records,  looking  about  titles,  &c.  but  it  did  not  turn  out  so. 
Emans  thought  too,  that  his  mortgage  should  be  the  oldest ;  but 
it  appears  finally  to  have  been  agreed  on  that  the  property  was 
enough  to  satisfy  both  mortgages,  and  that  it  made  but  little  dif- 
ference which  was  first.  There  is  no  evidence  to  show  what 
the  actual  value  of  the  property  was  at  thai  time.  The  first 
mortgage  from  Oliver  to  Emans  in  1814,  was  for  one  thousand 
five  hundred  dollars,  and  it  is  safe  to  conclude  that  the  property 
was  worth  at  least  that  amount  at  that  time.  Real  estate  after- 
wards commanded  a  higher  price  in  the  market.  In  1818, 


112  CASES  IN  CHANCERY. 

Hinchman  v.  Adrars.  of  Emans  et  al. 

when  these  mortgages  were  given,  it  was  not  far  from  its  maxi- 
mum;  and  if  property  had  not  greatly  depreciated,  the  present 
difficulty  would  probably  never  have  been  heard  of. 

The  taking  of  the  second,  or  junior  mortgage,  on  the  part  of 
Emans,  may  have  been  injudicious ;  but  I  do  not  feel  warranted 
in  saying  that  the  procurement  of  the  first,  on  the  part  of  Oliver, 
was  fraudulent ;  more  especially  as  Emans  voluntarily  relinquished 
his  original  lien  of  1814,  and  took  the  second  mortgage  of  Oliver 
in  1817,  with  full  notice  that  the  King  mortgage  of  prior  date  was 
outstanding  and  uncancelled.  But  for  that,  the  probability  is,  his 
original  priority  would  never  have  been  affected. 

There  is  considerable  evidence  as  to  the  incapacity  of  Emans. 
Doubtless  his  faculties  were  impaired  ;  and  if  this  business  had 
been  transacted  by  him  alone,  the  case  would  have  presented  much 
stronger  claims  to  the  consideration  of  the  court.  But  he  had  with 
him  a  friend  and  adviser,  in  whom  he  had  confidence,  and  who,  as 
it  is  proved  by  the  testimony  on  both  sides,  was  his  general  agent. 
Joseph  Smith,  a  witness  for  defendant,  says,  that  Wortman  was  his 
agent  or  assistant  from  the  time  of  his  first  illness  till  his  death  ; 
that  during  the  years  1817,  1818,  and  1819,  the  old  man  often 
went  from  home  to  settle  accounts,  with  Peter  Wortman  to  assist 
him.  Under  these  circumstances,  there  is,  as  I  conceive,  no  suffi- 
cient warrant  for  the  interference  of  the  court,  on  the  ground  of  in- 
capacity. 

On  the  whole  case,  I  am  of  opinion  that  the  complainant  is 
entitled  to  his  decree  for  a  sale,  and  that  the  money  be  appropriated 
in  discharge  of  the  two  mortgages  in  their  order  of  priority  on  the 
record. 

Let  it  be  referred  to  a  master  to  take  an  account,  making  all  just 
allowances  for  the  use  and  occupation  of  the  premises,  &c. 

CITED  in  Parker  v.  Child,  10  C.  E.  Or.  43. 


OCTOBER  TERM,  1830.  113 

Glover  v.  Hedges. 


JACOB  GLOVER  v.  ELIAS  HEDGES. 


On  a  petition  and  order  for  rehearing  generally,  the  whole  case  is  open ;  and  the 
party  supposing  himself  aggrieved,  has  a  right  to  insist  on  a  reconsideration 
of  any  part  of  it. 

On  a  bill  for  relief  against  a  verdict  and  judgment  at  law,  the  verdict  mu*t  ba 
taken  as  conclusive  upon  the  facts  before  the  jury  ;  there  can  be  no  appeal  to 
a  court  of  equity,  by  way  of  new  trial. 

There  are  cases,  nevertheless,  in  which  the  court  will  interefere  to  prevent  fraud 
or  gross  injustice:  where  there  has  been  a  fraudulent  concealment  of  facts  on 
the  part  of  the  plaintiff,  and  a  judgment  obtained  against  conscience,  equity 
will  relieve. 

It  must  appear,  however,  that  the  party  seeking  relief  has  used  all  proper  dili- 
gence to  defend  himself  at  law :  the  possession  of  new  testimony,  which 
witli  proper  care,  might  have  been  produced  before,  is  no  ground  for  a  new 
trial  at  law,  much  less  for  an  equitable  interference  with  the  judgment. 

The  court  ought  to  be  perfectly  satisfied  of  its  grounds,  before  it  undertakes  to 
defeat  the  right  which  a  party  has  acquired  by  the  verdict  of  a  jury ;  espe- 
cially, when  such  verdict  is  the  result  of  an  investigation  of  facts.  There 
ought  to  remain  no  reasonable  doubt. — The  new  discovered  evidence  pro- 
duced in  this  case,  not  being  sufficiently  certain  to  rest  upon,  the  bill  was 
dismissed,  but  without  costs. 

The  original  bill  in  this  case  was  filed  by  Jacob  Glover 
against  Elias  Hedges,  for  an  injuction,  and  for  relief  against  a 
judgment  obtained  by  said  Hedges  against  Gtbver,  in  the  common 
pleas  of  Morris  county,  for  wrongfully  cancelling  a  bond  and 
mortgage  given  by  Samuel  Hedges  to  the  said  Elias  for  four 
hundred  dollars,  (on  which  about  three  hundred  was  due,)  and 
by  him  deposited  with  Glover  as  collateral  security  for  the  pay- 
ment of  a  note  given  by  Elias  Hedges  and  Jacob  Cory  to  Glo- 
ver, for  three  hundred  dollars.  The  bill  charged,  that  by  a  cer- 
tain agreement  between  Samuel  Hedges  and  the  complainant, 
made  with  the  knowledge  and  approbation  of  Elias  Hedges,  this 
mortgage  was  to  be  cancelled.  That  Elias,  in  the  purchase 
from  Samuel,  of  a  place  called  the  Frederick  farm,  had  recei- 
ved satisfaction  for  all  his  responsibilities  for  Samuel,  and  for  the 
debt  secured  by  this  mortgage :  which  fact  the  plaintiff  had  con- 
cealed until  after  he  obtained  the  judgment  against  the  com- 
plainant. 

The  defendant,  in  his  answer,  denied  any  agreement  on  his  part 

H 


1U  CASES  IX  CHANCERY. 

Glover  v.  Hedges. 

that  the  bond  and  mortgage  should  be  cancelled.  He  alleged,  that 
after  the  note  given  by  himself  and  Cory  to  Glover  was  discharged, 
the  bond  and  mortgage  was  to  be  redelivered  to  him,  to  be  held  by 
him  as  collateral  security  for  the  payment  by  Samuel,  of  three  notes 
given  by  Samuel,  and  himself  as  his  security,  to  Glover  for  fifty  dol- 
lars each,  amounting  to  one  hundred  and  fifty  dollars,  which  notes 
were  given  for  the  balance  then  due  from  Samuel  to  Elias,  on  the 
bond  and  mortgage,  and  from  Elias  to  Glover  on  the  Cory  note — > 
both  having  been  reduced  by  payments  to  that  sum  ;  that  Glover 
had  sued,  and  obtained  a  judgment  against  Samuel  and  Elias  on 
these  notes  iu  the  Morris  pleas,  and  issued  execution,  and  Elias  had 
paid  the  amount  to  the  sheriff:  that  Samuel  was  insolvent,  and 
Elias  had  no  prospect  of  recovering  back  the  money  so  paid, 
unless  he  could  collect  it  on  the  judgment  against  Glover  for 
cancelling  the  mortgage  which  was  to  have  been  his  security.  He 
denied  that  he  had  received  satisfaction  for  this  in  the  purchase 
of  the  Frederick  farm,  or  in  any  other  way. 

Witnesses  were  examined  and  the  cause  heard  before  the  late 
chancellor,  in  July,  1826,  and  in  October  following  the  complain- 
ant's bill  was  dismissed.* 

In  February,  1827,  the  complainant  filed  a  petition  for  a  re- 
hearing, setting  forth 

1.  That  he  was  advised    and    believed    he  would, ,  upon  a  re- 
view of  the  evidence  in  the  case,  be  able  to  satisfy  the  court  that 
the  defendant,  before  the  recovery  at  law  of  the  judgment  against 
complainant,  had  received  satisfaction  for  what  he  so  recovered. 

2.  That  since  the  hearing  of  the  cause,  he  had  discovered,  that 
he  could   prove  by  several  respectable  witnesses,  that  the  defen- 
dant had  admitted  to  them  that  he  had  received    such    satisfac- 
tion in  the  purchase  of  the  Frederick  place ;    which  complainant 
did  not  know  before. 

Upon  this  petition  a  rehearing  was  ordered.  In  Septembery 
1827,  the  complainant  filed  a  supplemental  bill,  charging,  that 
he  hoped  and  expected  satisfactorily  to  prove  by  the  newly  dis- 
covered testimony  of  several  witnesses,  not  only  that  the  bond 
and  mortgage  from  Samuel  to  Elias  Hedges  should  be  cancel- 
led, but  that  Elias  had  received  payment  and  satisfaction  of  the 

*  See  this  case,  ante. 


OCTOBER  TERM,  1830.  115 

Glover  v.  Hedges. 

moneys  for  which  he  was  security  for  Samuel,  in  the  purchase 
from  him  of  the  Frederick  farm  ;  that  the  judgment  was  obtained 
against  him,  after  full  satisfaction  of  the  pretended  cause  of  action 
had  been  received,  by  fraud  and  concealment  of  the  fact  that  such 
satisfaction  had  been  received.  The  supplemental  bill  was  taken 
pro  coufesso,  in  April,  1828,  and  a  further  examination  of  wit- 
nesses ordered.  Witnesses  were  accordingly  examined,  and  the 
cause  came  on  to  be  reheard  upon  the  original  bill,  answer  and 
depositions,  and  petition  and  order  for  rehearing,  and  the  supple- 
mental bill  and  depositions. 

W.  Chetwood,  for  the  complainant. 

The  bill  seeks  perpetually  to  enjoin  E.  Hedges  from  proceed- 
ing on  the  judgment  against  the  complainant  in  the  common 
pleas  of  Morris,  or  to  obtain  a  satisfaction  of  that  judgment  as 
being  fraudulently  obtained.  A  court  of  equity  may  enjoin  pro- 
ceeding on  the  judgment,  or  order  satisfaction  to  be  entered, 
upon  proper  grounds,  such  as  we  apprehend  exist  in  the  present 
case.  Glover  held  three  promissory  notes  against  Samuel  and 
Elias  Hedges,  amounting  to  one  hundred  and  fifty  dollars;  he 
prosecuted  the  notes,  and  obtained  judgment  in  the  Morris  pleas. 
Elias  Hedges  then  prosecuted  Glover,  ia  an  action  on  the  case, 
for  cancelling  the  mortgage  from  Samuel  Hedges  to  Elias,  which 
had  been  deposited  in  Glover's  hands  as  collateral  security  for 
Elias  Hedges  and  Jacob  Cory's  note;  pretending  that,  after  that 
was  discharged,  the  mortgage  was  to  be  returned  to  him,  and 
held  as  collateral  security  for  his  responsibility  for  Samuel 
Hedges  on  these  notes  to  Glover.  At  the  trial  Glover  had  no 
evidence  to  show  that  Elias  had  received  from  Samuel  satisfaction 
for  all  responsibilities  for  him,  and  especially  for  this  very  en- 
gagement for  which  he  pretended  the  mortgage  was  to  be  held 
as  his  security :  and  a  verdict  and  judgment  was  obtained 
against  him.  If  we  can  show,  that  in  the  arrangement  by 
which  the  Cory  note  was  extinguished,  it  was  agreed  between 
Samuel  Hedges  and  Glover,  with  the  knowledge  and  approba- 
tion of  Elias,  that  this  bond  and  mortgage  was  to  be  cancelled 
when  a  settlement  between  Samuel  and  Elias  took  place,  and 
that  it  did  take  place;  and  further,  that  Elias  had  received 
from  Samuel,  in  the  purchase  of  the  Frederick  farm,  satisfaction 


116  CASES  IN  CHANCERY. 

Glover  v.  Hedge?. 

for  all  his  responsibilities  for  Samuel,  and  of  this  mortgage  debt; 
and  that  this  fact  was  concealed  by  Elias  until  after  the  judgment 
was  obtained  ;  then  the  judgment  is  without  any  foundation  in 
justice,  is  fraudulent,  and  the  complainant  is  entitled  to  relief. 
Of  these  facts  there  was  strong  evidence  on  the  former  hearing : 
the  only  way  in  which  the  defendant  attempted  to  answer  it,  was 
by  endeavoring  to  discredit  some  of  the  complainant's  witnesses, 
and  raise  doubts  in  the  mind  of  the  court.  Although  he  succeeded 
in  this,  we  apprehend  a  review  of  the  whole  case,  and  considera- 
tion of  the  newly  discovered  evidence  adduced  under  the  supple- 
mental bill,  will  be  sufficient  to  remove  all  doubts ;  and  satisfy  the 
court,  that  the  complainant  is  entitled  to  relief.  [Here  the  counsel 
adverted  to  the  evidence,  which  was  voluminous:  the  purport  of 
that  most  material,  appears  in  the  opinion  of  the  court.  The 
counsel  proceeded.]  This  court  has  power  over  a  judgment  at  law, 
and  may  relieve  against  it.  1  Mad.  Ch.  236-7.  It  will  relieve 
against  a  judgment  obtained  against  conscience,  by  concealment. 
IVes.jr.  135.  If  the  plaintiff  knew  at  the  time  that  the  judg- 
ment was  wrong,  the  complainant  is  entitled  to  relief. 

S.  Seudder,  for  the  defendant. 
/ 

A  court  of  equity  may  give  relief  against  a  judgment  at  law  on 
certain  grounds,  such  as  concealment  on  the  part  of  the  plaintiff 
of  material  facts  not  within  the  knowledge  of  the  defendant ;  for 
such  concealment  is  fraud.  The  proof,  however,  must  be  beyond 
all  doubt.  But  when,  as  in  this  case,  there  has  been  a  judgment 
on  a  verdict,  a  rule  to  show  cause  argued,  and  a  new  trial  refused, 
a  court  of  equity  cannot  review  the  judgment,  and  say  that  the 
court  of  law  decided  wrong  upon  the  matter  before  it.  The 
original  bill  does  not  present  a  case  sufficient  to  entitle  the  com- 
plainant to  relief.  It  charges  that  it  was  agreed  between  Samuel 
Hedges  and  Glover,  that  the  mortgage  from  Samuel  to  Elias 
Hedges  should  be  cancelled.  This  was  not  obligatory  upon 
Elias ;  he  had  deposited  the  mortgage  in  Glover's  hands  as  col- 
lateral security ;  when  that  object  was  answered,  he  was  entitled  to 
a  return  of  the  bond  and  mortgage.  But  it  is  added  that  this  part 
of  the  arrangement  between  Samuel  and  Glover  was  known  to 
Elias.  If  it  was,  that  could  not  affect  his  rights.  The  bill  doea 


OCTOBER  TERM,  1830.  117 

Glover  v.  Hedges. 

not  place  the  complainant's  claim  to  relief  on  the  ground  of  latent 
fraud  or  concealment;  but  says  the  judgment  was  without  color 
of  right,  and  insists  that  the  court  and  jury  were  clearly  wrong. 
This  is  not  sufficient.  The  petition  for  rehearing  is  also  insuffi- 
cient. This  cause  has  beer  heard,  and  a  decree  passed ;  after 
this  there  cannot  be  a  rehearing  upon  the  merits  of  the  case  ge- 
nerally, except  on  special  grounds,  such  as  a  deposition  or  exhi- 
bit being  lost  or  mislaid,  and  omitted  to  be  read  on  the-  hearing, 
so  that  the  cause  was  not  fully  before  the  court.  To  obtain  a 
rehearing  on  other  grounds,  the  petition  ought  to  state  expressly 
the  point  on  which  the  chancellor  was  mistaken.  Rules  Ch. 
57-8-9  and  60;  2  Had.  Ch.  370-1.  In  this  case,  as  to  what 
passed  at  the  former  hearing,  it  merely  states  that  complainant  is 
aggrieved  by  the  decree,  and  hopes  by  a  review  of -the  evidence 
to  be  able  to  satisfy  the  chancellor  that  he  is  right.  As  to  new 
matter,  the  petition  states,  and  the  amount  of  the  supplemental 
bill  is,  that  complainant  expects  to  be  able  to  prove  that  the  bond 
and  mortgage  of  Samuel  to  E.  Hedges  was  paid  by  the  purchase 
of  the  Frederick  farm.  But  there  is  no  new  matter  disclosed  by 
the  depositions.  The  evidence  of  Britton  and  Griswold,  the  wit- 
nesses relied  on,  was  not  newly  discovered  matter:  the  defendant 
was  apprized  of  this  before,  and  might  have  produced  the  evi- 
dence on  the  former  hearing.  It  is  never  cause  for  a  new  trial  at 
law,  or  rehearing  in  equity,  that  there  is  evidence  of  new  matter, 
which  by  due  diligence  might  have  been  produced  before.*  Ano- 
ther objection  to  Griswold's  evidence  is,  that  it  is  giving  in  evi- 
dence the  declaration  of  Samuel  Hedges,  who  gave  the  bond  and 
mortgage  in  question,  and  was  directly  interested  in  saying  that 
Elias  had  no  interest  in  it.  Nor  can  this  evidence  now  be  recei- 
ved to  impeach  the  credit  of  Samuel  Hedges,  as  a  witness  for- 
merly examined.  A  court  of  law  will  never  give  a  party  a  new 
trial  to  enable  him  to  discredit  a  witness.  3  John.  R.  253;  4 
John.  R.  425;  5  John.  R.  248.  In  14  John.  R.  186,  it  was 
admitted,  under  very  peculiar  circumstances.  The  rule  in  equi- 
ty is  laid  down  in  8  Ves.jn.  324.  After  publication  passed,  the 
party  may  have  liberty  to  prove  the  general  character  of  a  wit- 
ness, but  not  to  contradict  a  particular  fact.  But  after  final  de- 
cree, it  is  too  late  to  do  either.  This  objection  applies  to  all  the 
other  witnesses  examined  under  the  supplemental  bill,  except 


118  CASES  IN  CHANCERY. 

Glover  v.  Hedges. 

Britton.  The  testimony  of  Britton  is  too  vague  and  uncertain  to 
be  relied  on.  His  impressions,  derived  from  conversations  with 
Samuel  or  Elias  Hedges,  or  one  of  them,  are  very  indistinct. 
Suppose  it  was  from  Elias  that  he  understood  that  Elias  had  pur- 
chased the  Frederick  farm  to  save  himself  against  responsibilities 
entered  into  for  Samuel :  that  did  not  authorize  Glover,  if  the  re- 
sponsibilities were  satisfied,  to  destroy  the  bond  and  mortgage, 
which  was  the  property  of  Elias.  It  was  Glover's  duty  to  return 
them  to  him,  after  the  end  for  which  they  were  deposited  in  his 
hands  was  answered. 

Chetwood,  in  reply. 

We  do  not  pretend  that  the  court  can  grant  a  new  trial,  or  re- 
verse the  judgment  at  law;  but  it  can  review  the  former  decree 
in  this  court,  and  rehear  the  case  on  the  merits  generally,  with- 
out new  matter.  It  was  done  in  this  court  in  the  case  of  Wil- 
liamson and  Crane.  The  rule  is  laid  down  correctly  in  Coop. 
Eq.  P.  93.  The  sufficiency  of  the  petition,  or  propriety  of  the  or- 
der for  rehearing,  cannot  now  be  questioned.  By  the  order  the 
whole  case  is  open  ;  and  if  the  complainant,  upon  the  original 
case,  or  under  the  supplemental  bill,  is  entitled  to  relief,  the  court 
will  grant  it. 

THE  CHANCELLOR.  The  object,  of  the  bill  in  this  case,  is 
to  obtain  relief,  either  by  perpetual  injunction,  or  otherwise, 
against  a  judgment  obtained  in  the  common  pleas  of  Morris 
county,  by  Elias  Hedges,  the  defendant  in  this  suit,  against  Ja- 
cob Glover,  the  complainant;  on  the  ground  that  the  verdict  and 
judgment  were  obtained  in  the  court  of  common  pleas,  by  a 
fraudulent  concealment  of  facts,  and  is  therefore  uuconscientious. 
The  complainant  alleges,  that  he  was  unable  to  make  the  ne- 
cessary proof  on  the  trial  at  law :  but  has  since  discovered  evi- 
dence to  show  satisfactorily,  that  the  judgment  is  entirely  with- 
out foundation,  and  ought  not  in  justice  or  equity  to  be  sustain- 
ed or  enforced.  The  gravamen  of  thn  bill  is,  that  the  defen- 
dant obtained  a  judgment  in  the  pleas,  against  the  complain- 
ant, for  two  hundred  and  twenty-three  dollars,  for  improperly 
cancelling  a  certain  bond  and  mortgage,  theretofore  given  by  one 


OCTOBER  TERM,  1830.  119 

Glover  v.  Hedges. 

Samuel  Hedges  to  Elias  Hedges,  which  was  deposited  by  Eli- 
as  Hedges  in  the  hands  of  Jacob  Glover,  as  a  collateral  security, 
and  which  has  actually  been  paid,  by  Samuel  Hedges  to  Elias 
Hedges,  and  therefore  properly  cancelled  by  Glover. 

On  the  other  hand,  the  defendant,  Hedges,  insists,  that  he  has 
an  interest  in  the  mortgage,  and  by  the  agreement  of  his  bro- 
ther Samuel,  and  with  the  knowledge  of  the  complainant,  he 
was  justly  entitled  to  it,  as  a  collateral  security,  for  certain  re- 
sponsibilities entered  into  for  Samuel :  that  he  has  paid  money 
for  Samuel  to  the  amount  of  the  mortgage,  and  must  lose  it, 
unless  he  can  be  permitted  to  collect  and  receive  the  money  on 
the  judgment  recovered  against  Glover,  for  the  improper  can- 
cellation. 

A  jury  of  the  country,  upon  an  investigation  of  the-  facts,  have 
declared,  that  the  bond  and  mortgage  were  wrongfully  cancel- 
led, and  they  have  assessed  the  amount  of  the  plaintiff's  dama- 
ges. The  verdict  must  be  taken  as  conclusive,  upon  the  facts 
before  the  jury.  There  can  be  no  appeal  to  this  court  by  way 
of  new  trial.  There  are  cases,  nevertheless,  in  which  this  court 
will  interfere,  to  prevent  fraud  or  gross  injustice.  Where  there 
has  been  a  fraudulent  concealment  of  facts,  on  the  part  of  the 
plaintiff,  and  the  judgment  obtained  against  conscience,  equity 
will  relieve.  Slander  v.  Edwards,  1  Ves.  jr.  113;  1  Mad.  Ch.. 
236-7.  In  must  appear,  however,  that  tjje  party  seeking  relief, 
has  used  all  proper  diligence  to  defend  himself  at  law.  The 
possession  of  new  testimony,  which  with  proper  care  might  have 
been  procured  before,  is  no  ground  for  a  new  trial  at  law,  much 
less  can  it  form  the  ground  for  an  equitable  interference  with  the 
judgment. 

Much  testimony  was  taken  by  the  parties:  after  the  evidence 
was  closed,  the  cause  came  on  to  be  heard :  and  in  1827  it  was 
decreed  that  the  bill  should  be  dismissed  ;  the  court  being  of 
opinion,  that  the  complainant  had  not  made  out  his  case.  A 
petition  for  a  rehearing  was  filed, "in  which  it  was  stated  that  new 
and  material  evidence  has  been  discovered,  by  which  the  com- 
plainant would  show  conclusively,  that  the  plaintiff  below  had 
received  satisfaction  for  the  money  recovered  of  the  defendant. 
The  petition,  signed  by  two  counsel,  was  granted  as  of  course. 
A  supplemental  bill  was  then  filed,  and  under  this  a  new  volume 


120  CASES  IN  CHANCERY. 

Glover  v.  Hedges. 

of  evidence  has  been  taken,  much  of  which  consists  of  an  attack 
upon,  and  defence  of,  the  witnesses  before  examined  :  neither  a 
profitable  or  commendable  mode  of  proceeding  at  this  stage  of  the 
cause. 

The  cause  has  been  heard  a  second  time.  It  was  objected 
by  the  defendant,  that  the  cause  could  not  be  reheard  on  the 
merits,  but  that  the  complainant  must  be  confined  to  his  new 
matter.  This  is  not  so.  On  an  order  for  rehearing  generally, 
the  whole  cause  is  open,  and  the  party  supposing  himself  aggrieved, 
has  a  right  to  insist  on  a  reconsideration  of  any  part  of  it.  I  have 
accordingly  reviewed  the  whole  of  the  evidence. 

Two  questions  arise. 

1.  Was  the  former  decree  right? 

2.  Is  the. additional  and  newly  discovered  evidence,  sufficient  to 
warrant  an  alteration  ? 

As  to  the  first,  I  have  no  difficulty  in  saying,  I  am  satisfi- 
ed with  the  decree  formerly  made.  The  case  as  presented  was 
certainly  not  a  clear  one ;  and  I  think  this  court  should  be  per- 
fectly satisfied  of  its  ground,  before  it  undertakes  to  defeat  the 
right,  which  a  party  has  acquired  by  the  verdict  of  a  jury;  es- 
pecially when  such  verdict  i£  the  result  of  an  investigation  of 
facts,  which  it  is  so  peculiarly  the  province  of  a  jury  to  pass  upon, 
and  for  the  ascertainment  of  which  that  tribunal  is  so  admirably 
adapted. 

2.  Is  the  additional  evidence  such  as  to  warrant  an  alteration  of 
the  decree?  f 

The  testimony  of  Chauncey  Griswold  is  relied  on,  as  furnish- 
ing evidence  sufficient  to  show,  that  the  recovery  in  the  Pleas  was 
wrong  and  unconscientious.  It  proves  the  confession  of  Samuel 
Hedges,  that  he  and  his  brother  Elias  had  settled,  and  that 
the  old  mortgage  was  paid.  The  witness  says,  that  this  was 
known  to  Glover  before  the  trial  at  law,  but  he  was  told  the 
evidence  could  not  be  received  then.  That  was  certainly  cor- 
rect :  Samuel  Hedges  was  not  sworn  as  a  witness  in  that  case, 
and  his  allegations  could  not  be  received  against  his  brother; 
but  this  witness,  Chauncey  Griswold,  was  sworn  and  examin- 
ed in  this  cause,  before  the  first  hearing,  and  immediately  af- 
ter Samuel  Hedges.  Why  was  not  this  evidence  given  at  that 
time?  Griswold  says,  he  was  not  asked  as  to  that  matter.  If 


OCTOBER  TERM,  1830.  121 


Clark  and  Smith  v.  Smith  et  al. 


this  be  so,  and  it  appears  to  be,  from  the  examination  itself,  why 
did  not  the  defendant,  Glover,  cause  him  to  be  examined  on  that 
subject?  The  fact  was  known  to  Glover,  why  was  it  withheld? 

I  cannot  consider  this  as  newly  discovered  evidence.  It  is  .not 
within  the  petition  for  rehearing,  or  the  supplemental  bill.  No 
reason  was  assigned  why  it  was  kept  back ;  and  to  receive  it 
at  this  time,  and  under  these  circumstances,  would  be  a  precedent 
of  dangerous  tendency. 

The  new  evidence  relied  on  by  the  complainant,  is  that  of 
Abraham  Britton.  He  testifies  that  he  cannot  say  distinctly 
what  he  has  heard  from  Elias  and  Samuel  Hedges,  about  the 
purchase  of  the  Frederick  place.  His  impression,  derived  from 
conversations  with  one  or  both  of  them,  is,  that  Elias  purcha- 
sed the  place  to  secure  himself  from  responsibilities  entered  into 
by  him  for  Samuel.  This  is  too  indefinite  to  be  of  any  weight. 
He  speaks  merely  of  an  impression  derived  from  conversations 
with  one  or  both  of  them.  If  derived  from  one  only,  and  that 
one  Elias  Hedges,  it  is  not  competent  evidence;  if  from  Samuel 
Hedges,  it  is  not  sufficiently  certain  to  rest  upon. 

From  the  best  view  I  have  been  enabled  to  take  of  this  case, 
I  think  it  is  not  made  out  satisfactorily,  even  with  the  help  of 
the  additional  evidence.  There  ought  to  remain  no  reasonable 
doubt. 

Let  the  bill  be  dismissed,  without  costs.  ^ 

CITED  in  Power's  Ex..  v.  Sutler's  Ad..  3  Gr.  Ch.  470 ;  Tompkins  v.  Tompkins,  3 
Stockt.  514;  Davis  v.  Headley,  7  C.  E.  Gr.  123. 


CLARK  &  SMITH  v.  SMITH  AND  OTHERS. 


VV.  H.,  by  consent  of  the  mortgagees,  and  while  a  bill  for  foreclosure  and  sale  of 
the  premises  was  depending,  look  possession  of  a  cotton  mill  and  premises, 
(supposed  to  be  worth  not  more  than  the  amount  of  the  complainant's  mort- 
gage,) in  expectation  of  becoming  the  purchaser,  and  before  a  decree  for  sale 
of  the  premises  was  obtained.  Considering  it  necessary  to  enable  him  to  use 
the  property  to  advantage,  to  make  improvements  and  repairs,  and  in  order 
to  protect  himself  in  so  doing,  he  obtained  from  J.  T.  a  defendant  in  the  suit 
and  holder  of  a  subsequent  mortgage,  an  instrument  of  writing,  in  which 
after  reciting  that  J.  T.  held  a  mortgage  on  the  premises  in  question  for 
about  one  thousand  five  hundred  and  sixty-one  dollars;  that  there  were 
prior  incumbrances  on  the  property  ;  and  as  the  premises  were  not  considered 


122  CASES  IN  CHANCERY. 

Clark  and  Smith  v.  Smith  et  al. 

worth  more  than  the  prior  incumbrances,  and  therefore  furnished  no  secu- 
rity for  the  amount  due  to  J.  T. ;  and  as  the  said  W.  H.  wished  to  take 
possession  of,  to  improve,  and  extinguish  all  incumbrances  on,  the  prop- 
erty; therefore,  to  enable  him  to  extinguish  the  outstanding  incumbran- 
ces, he,  J.  T.  for  the  consideration  of  one  hundred  dollars,  "released  to 
the  said  W.  H.  all  the  right,  title,  and  interest,  which  he,  the  said  J.  T. 
had,  in  and  to  the  said  cotton  mills,  machinery,  and  premises,  by  virtue 
of  said  mortgage."  By  this  instrument  the  mortgage,  which  was  the  secu- 
rity, was  separated  from  the  debt,  which  was  the  principal.  The  only 
operation  of  the  instrument  was,  to  release  or  give  up  the  mortgage,  and 
exonerate  the  property  from  its  lien:  it  did  not  extinguish  or  transfer  the 
debt,  or  impair  the  claim  of  J.  T.  for  the  same,  against  the  other  property 
or  person  of  the  mortgagor. 

W.  H.  also  obtained  from  subsequent  judgment  creditors,  an  instrument,  wherein, 
after  reciting  that  as  the  prior  incumbrances  exceeded  in  amount  the  value 
of  the  property,  which  formed  therefore  no  security  for  the  judgment,  they, 
the  plaintiffs,  for  the  sura  of  thirty-three  dollars  seventy-five  cents,  and  for 
the  purpose  of  enabling  W.  H.  to  extinguish  the  outstanding  incumbrances, 
"released  to  the  said  W.  H.  all  the  right,  title,  and  interest,  which  they  had 
in  said  cotton  mills,  machinery,  and  premises,  by  virtue  of  said  judgment." 
Notwithstanding  this,  the  judgment  remains,  and  remains  the  property  of 
the  plaintiffs;  but  this  estate  is  to  be  no  longer  subject  to  its  lien. 

The  premises  in  question  having  been  thus  exonerated  from  the  operation  of 
these  liens,  and  having  afterwards  been  sold  by  the  sheriff  for  an  amount 
exceeding  the  demands  of  the  complainants;  W.  H.,  by  virtue  of  these  in- 
struments, is  not  entitled  to  the  surplus  money,  but  it  must  go  to  the  assignee 
of  the  mortgagor,  (he  having  been  discharged  under  the  insolvent  act,)  for 
the  benefit  of  his  creditors. 

Where  one  comes  into  possession  under  mortgage  creditors,  he  may  be  consid- 
ered as  a  mortgagee  in  possession  ;  yet  when  he  comes  in  purely  as  a 
volunteer,  whether  he  ought  to  be  placed  in  a  situation  quite  so  favor- 
able, Quere. 

Where  a  mortgagee  in  possession,  is  necessarily  put  to  expenses,  in  defending  or 
securing  the  title,  he  is  entitled  to  an  allowance  for  the  expenditure :  as 
where  he  has  been  put  to  expense  in  foreclosing  his  mortgage,  or  has  advanc- 
ed money  for  fines  on  the  renewal  of  leases  under  which  the  premises  were 
held,  or  has  expended  money  in  defending  the  title  of  the  morigagor  to 
the  estate,  when  his  title  has  been  impeached,  it  niay  be  added  to  the 
debt  of  the  mortgagee:  and  taxes,  if  paid  by  the  mortgagee,  are  a  proper 
charge  against  the  estate. 

But  a  mortgagee  cannot  charge  for  trouble  and  expense  in  receiving  the  rents  and 
profits,  although  there  may  be  a  private  agreement  for  such  allowance  be- 
tween him  and  the  mortgagor,  nor  for  the  expense  of  insurance,  which  is 
considered  as  the  act  of  the  mortgagee,  for  his  own  benefit. 

So,  where  a  mortgagee  in  possession,  undertakes,  without  the  consent  and  ap- 
probation of  the  mortgagor,  to  make  improvements  on  the  property,  though 
they  may  be  of  a  beneficial  and  permanent  character,  he  does  it  at  his  pe- 


OCTOBER  TERM,  1830.  123 

Clark  and  Smith  v.  Smith  et  al. 

ril,  and  has  no  right  to  look  for  an  allowance  at  the  hands  of  the  mortgagor. 
If  the  mortgagor  does  not  choose  to  have  the  improvements,  the  mortgagee 
.  has  no  right  to  impose  them  upon  him,  and  thereby,  perhaps,  deprive  him 
of  the  power  of  redeeming. 

The  ordinary  rule  is,  that  money  laid  out  in  improvements,  does  not  create  a 
lien  :  there  is  no  hardship  in  the  rule.  A  mortgagee  is  no  more  bound  to  im- 
prove the  estate,  than  the  mortgagor.  If  the  mortgagor,  after  giving  the 
mortgage,  makes  improvements  on  the  premises,  the  whole  of  them  shall  go, 
if  it  be  necessary,  to  satisfy  the  mortgage  ;  and  so,  if  improvements  are  made 
by  the  mortgagee,  they  are  voluntarily  made,  and  he  cannot  afterwards  turn 
round  and  claim  allowance  for  them.  They  will  enure  for  the  benefit  of  the 
estate,  and  if  he  should  suffer  a  loss,  the  maxim  will  well  apply  ;  volenti  non 
fit  injuria. 

It  is  well  settled,  that  a  mortgagee  in  possession  is  not  bound  to  expend  money 
on  the  mortgaged  premises,  further  than  to  keep  them  in  "  necessary  re- 
pair:" this  language  has  been  construed  strictly,  and  such  allowance  put 
on  the  ground  of  "absolute  necessity  for  the  protection  of  the  estate;"  for 
such  expenditure,  when  incurred,  he  will  receive  allowance. 

If  in  this  case  the  mill  could  have  been  used  with  the  machinery  as  it  was  when 
W.  H.  voluntarily  took  possession  of  it ;  if  the  repairs  made  were  for  the 
purpose  of  increasing  its  speed,  or  enabling  it  to  do  a  greater  amount  of  work 
than  ft  had  formerly  done,  when  its  machinery  was  in  order,  so  as  to  en- 
hance the  benefit  of  the  possession ;  then  no  allowance  is  to  be  made  for  the 
repairs.  If  they  were  really  indispensable  to  keep  the  mill  in  operation,  then 
they  ought  to  be  allowed. 

There  is  a  distinction  between  necessary  repairs  and  highly  beneficial  improve- 
ments :  in  this  case  it  was  referred  to  a  master  to  take  an  account  of  such 
repairs,  if  any,  and  of  the  proper  allowance  to  be  made  therefor. 


A  bill  was  filed  by  the  complainants  for  a  foreclosure  and 
sale  of  certain  mortgaged  premises  in  Paterson,  in  the  county  of 
Essex,  consisting  of  a  cotton  mill  and  machinery,  then  in  the 
occupation  of  Nicholas  Smith.  There  were  a  number  of  incum- 
brauces  on  the  property,  and  all  persons  interested  were  made 
parties  to  the  bill.  In  1826,  an  execution  issued  for  the  sale 
of  the  premises,  to  raise  the  sum  of  eight  thousand  nine  hun- 
dred and  nineteen  dollars  and  ten  cents  ;  being  the  amount  de- 
creed to  be  due  to  the  complainants,  to  Samuel  Downer  and  John 
Crumby,  and  to  the  Paterson  bank  ;  being  all  the  claims  which 
had  been  presented  to  the  master  who  took  the  account.  Besides 
these  claims,  there  was  a  judgment  due  the  Paterson  bank  of 
about  dollars, 

which   by  accident  was  not  included  in  the  master's  report ;   and 
there  was  also  a  judgment  in  favor  of  Benjamin  Deforest  and  Al- 


124  CASES  IN  CHANCERY. 

Clark  and  Smith  v.  Smith  et  al. 

fred  Deforest,  for  about  four  hundred  dollars,  and  a  mortgage  to 
Jonah  Tilley  of  about  one  thousand  six  hundred  dollars.  The 
property  brought  at  the  sheriff's  sale  the  sum  of  eleven  thousand 
seven  hundred  and  forty  dollars;  which,  after  satisfying  the  de- 
mands of  the  execution,  left  a  balance  in  the  hands  of  the  sheriff 
of  two  thousand  seven  hundred  and  eleven  dollars  and  sevenjy- 
once  cents,  subject  to  the  order  of  the  court. 

In  1827,  Warren  Haight  filed  his  petition  in  this  court,  praying 
that  this  surplus  money  might  be  paid  over  to  him.  He  stated  in 
his  petition,  that  pending  the  above  mentioned  suit,  he  entered  and 
took  possession  of  the  mill  and  premises,  with  the  consent  of  the 
persons  entitled  to  the  equity  of  redemption,  or  some  of  them,  and 
under  an  expectation  of  becoming  the  purchaser;  that  the  premi- 
ses were  at  that  time  in  a  very  dilapidated  state,  and  not  consider- 
ed to  be  worth  the  amount  of  incumbrances  ;  that  finding  exten- 
sive improvements  necessary  to  enable  him  to  use  the  property  to 
advantage,  he  did,  in  order  to  protect  himself  as  far  as  possible,  ob- 
tain from  Jonah  Tilley,  one  of  the  defendants  in  the  suit,  an  as- 
signment of  his  mortgage  on  the  premises,  and  from  Benjamin 
and  Alfred  Deforest,  two  of  the  defendants,  an  assignment  of  their 
judgment  against  Nicholas  Smith  ;  that  having  procured  an  as- 
signment of  said  incumbrances,  he  proceeded  to  make  repairs  and 
improvements  on  the  said  mortgaged  premises,  to  the  amount  of 
three  thousand  two  hundred  and  seventy-seven  dollars,  and  also 
put  new  machinery  in  the  mill  to  the  value  of  two  thousand  six 
hundred  and  eighty-seven  dollars  ;  that  at  the  sheriff's  sale  he 
became  the  purchaser  of  the  property  for  eleven  'thousand  seven 
hundred  and  forty  dollars,  which  has  been  satisfied  to  the  sheriff, 
and  he  has  received  a  deed  for  the  property.  He  further  sets  forth, 
that  he  has  obtained  an  assignment  of  the  judgment  of  the  Pater- 
son  bank  above  specified,  and  that  there  is  due  on  the  same  the 
sum  of  seven  hundred  and  forty-nine  dollars,  or  thereabouts;  that 
there  is  due  on  the  mortgage  assigned  to  him  by  Tilley,  one 
thousand  six  hundred  and  fifty-two  dollars,  and  on  the  judgments 
assigned  to  him  by  the  Deforests,  four  hundred  and  twenty-three 
dollars  or  thereabouts,  making  altogether  an  amount  exceeding 
the  surplus  money  raised  on  the  execution  ;  that  he  is  the  bona 
fide  owner  of  the  property,  and  that  the  property  would  not  have 


OCTOBER  TERM,  1830.  125 

Clark  and  Smith  v.  Smith  et  al. 

brought  enough  at  the  sheriff's  sale  to  satisfy  the  execution,  but  for 
the  extensive  and  valuable  improvements  and  repairs  made  on  it 
by  the  petitioner.  He  prays  therefore,  that  an  account  may  be 
taken  of  the  amount  of  said  incumbrances,  and  that  the  surplus 
money,  or  so  much  as  may  be  necessary,  be  directed  to  be  paid  him 
in  satisfaction  of  the  same. 

The  petition  was  referred  to  a  master,  who  proceeded  to  take 
evidence  and  examine  the  facts  charged  in  it.  After  investigation, 
the  master  reported  that  the  petitioner  had  no  claim  to  any  part 
of  said  surplus,  by  reason  of  the  alleged  assignment  of  the  Tilley 
mortgage;  that  the  assignment  or  release  from  Tilley  to  Haight, 
did  not  operate  to  pass  over  the  debt  to  Haight,  but  only  to  ex- 
tinguish the  mortgage  lien  on  the  premises;  and  so,  in  like  man- 
ner, that  the  assignment  or  release  from  the  Deforests  to  Haight, 
did  not  pass  to  hJm  their  interest  in  the  judgment,  but  was  inten- 
ded to  extinguish  the  judgment  lien  on  the  property  about  to  be 
purchased  by  Haight;  and  in  regard  to  the  claim  of  the  petitioner 
under  the  judgment  in  favor  of  the  Paterson  bank,  the  master  re- 
ported that  it  did  not  appear  that  the  judgment  was  ever  assigned 
to  Warren  Haight,  but  that  the  amount  due  on  it  was  rightfully 
owing  to  the  said  Paterson  bank,  which  was  entitled  to  receive  it 
out  of  the  surplus ;  and  that  the  balance  of  the  said  surplus 
should  be  paid  to  Uriah  Garrabrants,  the  assignee  of  Smith  the 
mortgagor,  (who  had  become  insolvent  and  taken  the  benefit  of 
the  insolvent  laws,)  to  be  by  him  appropriated  for  the  benefit  of 
Smith's  creditors.  Exceptions  were  taken  to  the  report  of  the 
master  generally,  and  the  whole  matter  was  brought  before  the 
court  for  revision. 

P.  Dickerson,  for  the  petitioner. 

The  bill  was  filed  in  October,  1824.  N.  Smith,  the  mortgagor, 
was  discharged  under  the  insolvent  act,  in  February,  1825.  After 
that,  no  person  took  charge  of  the  property.  Dickey,  the  ten- 
ant, gave  up  possession  of  the  mill;  Garrabrants,  Smith's  assignee, 
delivered  over  the  keys  to  the  agent  of  the  Paterson  bank.  In 
June,  1825,  they  rented  to  Ruton  &  Benson,  who  soon  after  gave 
up  the  possession.  The  bank,  holding  the  first  mortgage  and  a 
subsequent  judgment,  were  willing  to  make  a  sacrifice.  They 


126  CASES  IN  CHANCERY. 

Clark  and  Smith  v.  Smith  el  al. 

offered  to  sell  the  property,  but  could  not.  It  was  then  thought 
not  worth  nine  thousand  dollars.  Afterwards,  Haight  came  for- 
ward, and  on  the  4th  of  March,  1826,  contracted  with  the  bank  for 
their  claims  on  the  property.  It  was  then  in  such  a  state  that  he 
could  not  use  it  "to  advantage  without  improvements  and  repairs. 
To  secure  himself  in  making  the  improvements  and  repairs  that 
were  necessary,  on  the  6ih  March,  1826,  he  entered  into  these 
contracts  with  Tilley  and  the  Deforests.  Tilley,  for  one  hundred 
dollars,  agreed  that  Haight  might  have  the  control  of  his  mort- 
gage, and  extinguish  it  when  he  thought  proper.  (He  consented 
also  that  the  bond  might  be  used  for  the  purpose  of  obtaining  a 
decree.  We  had  it  in  our  hands,  but  it  got  back  into  the  hands 
of  Tilley,  and  therefore  the  master  would  make  no  report  on 
this  mortgage.)  The  Deforests,  for  thirty-three  dollars  and  seventy- 
five  cents,  made  a  similar  agreement  as  to  their  judgment. 
These  transactions  were  perfectly  fair,  and  the  considerations  suf- 
ficient, as  the  claims  were  given  up  as  lost.  Haight  sought  to 
obtain  the  control  of  these  incumbrances,  that  he  might  thereby 
protect  himself  in  making  the  necessary  repairs  and  improve- 
ments ;  and  not  for  the  purpose  of  extinguishing  them  for  the 
.benefit  of  other  persons.  He  too,k  possession  on  the  26th  March, 
1826;  put  in  new  machinery  to  the  amount  of  one  thousand 
nine  hundred  and  eighty-one  dollars;  expended  one  thousand 
four  hundred  dollars  in  repairs  and  improvements  on  the  pro- 
perty, and  carried  on  the  mill  until  the  sale.  In  July,  1826, 
there  was  a  decretal  order  made  in  the  cause,  referring  it  to  a 
master  to  take  an  account  as  to  mortgages:  judgments  by  ac- 
cident were  omitted  in  the  order,  and  therefore  not  noticed  in 
the  report.  This  was  considered  unimportant  at  the  time,  as  it 
was  not  supposed  that  the  amount  of  the  sale  would  reach  them. 
A  final  decree  was  obtained  in  October,  1826,  and  an  execution 
issued,  upon  which  there  was  due  on  the  6th  March,  1827,  nine 
thousand  and  twenty-eight  dollars  and  twenty-nine  cents.  The 
property  was  then  sold  by  the  sheriff  to  Haight,  for  eleven  thou- 
sand seven  hundred  and  forty  dollars.  From  the  evidence  taken 
under  the.  petition,  it  is  manifest,  that  without  the  improvements 
and  repairs  made  by  Haight,  the  property  would  not  have  sold 
for  more  than  sufficient  to  satisfy  the  decree.  As  it  is,  it  has 
produced  a  surplus  of  two  thousand  seven  hundred  and  eleven 


OCTOBER  TERM,  1830.  127 


Clark  and  Smith  y.  Smith  et  al. 


dollars  and  seventy-one  cents,  which  is  claimed  by  the  petition- 
er. But  the  master's  report  gives  it  to  Garrabrants,  the  assignee 
of  Smith,  for  the  benefit  of  his  creditors.  The  master,  we  ap- 
prehend, has  mistaken  the  nature  of  these  contracts  between 
Haight  and  Tilley,  and  the  Deforests.  He  supposes  them  to  be 
releases,  and  that  they  operated  to  extinguish  the  claims.  This 
is  not  the  effect  of  a  release  to  a  purchaser:  it  passes  an  in- 
terest when  it  is  necessary  to  effectuate  the  intent.  2  Mason 
R.  531.  These  contracts  were  not  intended  to  extinguish  the 
liens,  but  to  give  Haight  the  control  of  them  for  his  benefit,  and 
enable  him  to  extinguish  them  when  he  thought  proper.  Equi- 
ty will  regard  the  intent  of  a  contract  and  carry  it  into  effect. 
The  intent  in  this  instance  cannot  be  mistaken,  and  to  car- 
ry it  into  effect,  an  interest  in  these  liens  must  necessarily  pass 
to  Haight.  He  claims  the  surplus  money  on  two  grounds.  1. 
Having  come  into  possession  under  the  mortgagees,  and  made  im- 
provements and  repairs  to  a  large  amount,  he  claims  it  as  mort- 
gagee, on  the  ground  that  a  mortgagee  in  possession,  is  enti- 
tled to  an  allowance  for  all  permanent  and  necessary  improve- 
ments and  repairs.  1  Vern.  R.  316;  3  Atk.  R.  518 ;  Pow.  on 
31.  88-9 ;  Finch  R.  38 ;  4  Ves.  jr.  266 ;  3  Pow.  M.  956  n. 
(<?.)  957.  2.  He  claims  it  as  having  the  equitable  right  to  the 
inctunbrances  of  Tilley. and  the  Deforests.  These  are  next  in 
order  to  the  Paterson  bank  judgment ;  they  are  outstanding  in- 
cumbrances,  and  Haight  is  entitled  to  all  the  benefit  to  be  deri- 
ved from  them.  Tilley  and  the  Deforests,  after  having  agreed  to 
give  the  whole  benefit  of  these  liens  to  Haight,  cannot  now  turn 
round  and  claim  the  money  under  them;  and  it  would  be  still 
more  inequitable  and  unjust,  that  they  should  be  considered  as 
extinguished,  and  the  extinguishment  should  enure  for  the  bene- 
fit of  Smith  and  his  creditors,  and  be  of  no  service  to  Haight.  It 
would  defeat  the  obvious  intent  of  the  parties,  and  instead  of  pro- 
tecting Haight,  would  expose  him  to  the  very  difficulty  he  sought 
by  these  contracts  to  avoid. 

W.  Penninglon,  contra. 

Haight  claims  on  two  grounds :  under  the  agreement  with  Til- 
ley  and  the  Deforests,  and  for  improvements. 


128  CASES  IN  CHANCERY. 

Clark  and  Smith  v.  Smith  et  al. 

1.  As  to  the  agreements.      The  contract  with  Tilley  cannot 
operate  as  an  assignment  of  the  mortgage ;  the  debt   is  the  prin- 
cipal, the  mortgage  is  an  incident.     Tilley  had  a  right  to  destroy 
the  incident  and  extinguish  the  mortgage  if  he  chose.     4  Kent, 
0.  186;  11  John.  R.  584.     But  he  could  not,  by  way  of  assign- 
ment, separate  the  mortgage  from  the  debt ;   the  debt  cannot  be 
in  one  person,  arid  the  interest  in  the  mortgage  in  another.     4 
John.  JR.  41  ;    5  John.  C.  R.  570.     From  these  cases,  the  fair 
conclusion    is,  that   mortgages  are  mere  securities  for  the  debt ; 
they  only  pass  an  interest  in  the  land  as  ancillary  to  the  debt. 
Unless  therefore  the  debt,  or  the  interest  in  it,  was  assigned  to 
Haight,  the  assignment  of  the  mortgage  was  void.     The  proper 
construction  to  be  given  to  the  agreement  with  Tilley  is,  that  it  is 
an  extinguishment  of  the  mortgage  lien  on  the  premises.     19  John. 
R.  326.     This  is  in  accordance  with  what  we  consider  the  spirit  of 
the  contract.     The  agreement  recites  a  wish  to  extinguish  the  in- 
cumbrances.     On  the  other  side,  it  is  said,  that  it  was  not  inten- 
ded to  extinguish  the  mortgage,  but  to  enable  Haight  to  do  it 
when  he  thought  proper ;  but  if  so,  that  does  not  authorise  him 
to  take  the  debt  and  consider  it  as  his  own;  the  agreement  does 
not  transfer  the  "mortgage,  but  releases  all  right  under  it.     It  can 
amount  to   nothing  more  or  less  than  an  extinguishment.     The 
agreement  with  the  Deforests  is  of  -the  same  import,  made  on  the 
same  day,  and  with  the  same  view.     It  releases  to  Haight  all 
right  and  title  to  the  mill,  under  the  judgment.     It  does  not  re- 
lease the  debt,  but  only  the  lien  under  the  judgment.     Tilley  on 
his  bond,  and  the  Deforests  under  their  judgment,  yet  have  sub- 
sisting demands  against  Smith,  which  he  may  at  any  time  be  called 
on  to  pay. 

2.  As   to   the   claim    for   improvements.     At  first  view,  there 
would   appear  to  be  some  equity  in   this,  as   the   improvements 
were  put   on   the   property  by  Haight ;  but  such  a  doctrine  is 
inadmissible.     According  to  this  a  mortgagee   might  make  great 
improvements,  then   at  the  sale   give  notice  that  he  claims  for 
improvements,  embarrass  the  sale,  and    when    the    property  was 
sold  for  a  depressed  price,  come  in  and  claim  the  surplus.     This 
is  a  dangerous  doctrine  for  mortgages ;   the  cases  are  the  other 
way.     1  John.  C.  R.  385.     The  most  favored  situation  in  which 


OCTOBER  TERM,  1830.  120 

Clark  and  Smith  v.  Smith  et  al. 

Haight  can  be  placed,  is  that  of  a  mortgagee.  Standing  in  that 
character,  (for  the  sake  of  argument,)  he  is  not  entitled  to  the 
surplus  money.  I  do  not  deny  that  a  mortgagee  in  possession 
may  repair  a  roof  for  upholding  the  premises,  and  be  allowed  for 
it ;  it  may  be  necessary  to  prevent  the  destruction  of  the  proper- 
ty; but  the  court  have  been  careful  to  limit  the  principle  to  ne- 
cessary repairs;  else  a  mortgagee  might  raise  the  value  of  the 
premises,  and  the  amount  of  his  lien,  so  much,  that  the  mort- 
gagor could  not  redeem  ;  and  the  greater  the  value,  the  greater 
the  danger,  as  upon  a  sale  there  would  be  fewer  bidders.  But 
what  was  the  situation  of  Haight,  with  respect  to  this  property  ? 
Smith,  the  owner  of  the  equity  of  redemption,  was  prostrate;  the 
Paterson  bank  had  a  large  amount  of  liens  on  the  mill;  a  bill 
for  foreclosure  was  filed  in  1824;  the  suit  was  depending  nearly 
two  years,  during  which  time  Haight  had  nothing  to  do  with  it. 
After  all  this,  he  comes  in,  contracts  with  the  incumbrancers,  and 
takes  possession  of  the  property,  in  March,  1826.  There  was 
a  decree  for  sale  in  October,  1826  :  if  he  had  only  waited  a  few 
months,  there  would  have  been  a  sale  of  course.  He  is,  there- 
fore, a  mere  volunteer,  and  does  not  stand  in  the  light  of  a  ten- 
ant by  mortgage,  who  is  driven  to  make  repairs  for  the  sup- 
port of  the  property. 

What  were  the  repairs  he  put  on  the  premises?  He  evidently 
intended  to  become  the  owner  of  the  property  and  he  made  im- 
provements to  suit  his  own  views.  To  admit  the  principle,  that 
for  these  improvements  he  is  entitled  to  allowance  in  relation  to 
these  mill  establishments,  would  be  ruinous:  in  them  many  chanr 
ges  are  made,  not  to  support  them,  but  to  improve  their  ope- 
ration, and  render  them  more  productive ;  and  all  these  may, 
by  some  persons,  be  considered  necessary,  as  they  are  by  wit- 
nesses in  this  case.  Another  consideration  is,  the  bank  took  pos- 
session of  this  property,  rented  it  one  year,  and  received  the  rent ; 
Haight  occupied  it  another  year  before  the  sale;  yet  we  have 
no  account  of  rents  and  profits.  If  these  improvements  are  to 
be  paid  for,  we  say  they  ought  to  be  paid  for  out  of  the  rents. 
Haight  also  put  in  new  machinery;  notice  was  given  at  the  sale 
that  this  did  not  go  with  the  mill ;  the  sale  was  embarrassed 
by  it,  or  the  property  might  have  sold  for  more.  Haight  bought. 

I 


130  CASES  IN  CHANCERY. 

Clark  and  Smith  v.  Smith  et  al. 

it,  and  then  comes  in  and  asks  for  the  surplus  money.  We  ap- 
prehend he  is  not  entitled  to  it.  .  We  agree,  that  Tilley  and  De- 
forests are  not,  by  virtue  of  any  liens  they  have  on  this  property : 
the  money  belongs  to  the  assignee  of  Smith,  for  the  benefit  of  his 
creditors. 

T.  Frelinghuysen,  on  the  same  side. 

After  the  bill  was  filed,  and  Smith  was  prostrate,  the  bank  set 
about  to  save  themselves;  the  suit  was  delayed,  and  they  rented 
the  property.  After  the  tenants  gave  up,  Haight  came  forward ; 
it  was  a  speculation  between  the  bank  and  Haight.  Their  object 
was  to  secure  their  claims;  his  to  become  the  owner  of  the  pro- 
perty. Smith,  the  owner  of  the  property,  had  nothing  to  do  with 
it.  Haight  agreed  with  the  bank  to  remove  the  incumbrances, 
and  they  agreed  to  sell  their  whole  interest  to  him.  This  gave  him 
the  control,  and  prevented  competition.  After  making  the  ar- 
rangements with  Tilley  and  the  Deforests,  he  took  possession 
of  the  property  ;  he  treats  the  property  as  his  own ;  re-organi- 
zes it,  and  introduces  new  machinery,  to  suit  his  own  views.  At 
length  the  property  is  sold,  and,  unexpectedly,  it  brings  more  than 
the  incumbrances  included  in  the  decree  !  Haight  then  turns  round 
and  claims  the  surplus,  in  the  character  of  a  mortgagee,  because 
he  says  he  has  made  improvements.  He  does  not  stand  in  the 
light  of  a  mortgagee;  he  is  a  mere  volunteer,  and  a  volunteer 
while  a  suit  was  depending,  and  after  the  court  had  taken  cog- 
nizance of  the  whole  matter.  He  claims  the  new  machinery; 
that  was  not  sold  ;  he  gave  notice  that  he  claimed  it,  which  em- 
barrassed the  sale  of  the  property,  and  this  must  always  be  the 
case,  where  such  a  course  of  proceeding  is  allowed.  Supposing 
him  a  mortgagee,  his  claim  for  improvements  is  inadmissible.  The 
allowance  of  such  claims  would  lead  to  .the  ruin  of  mortgagors; 
it  would  enable  a  second  mortgagee  always  to  defeat  the  third, 
by  adding  to  the  amount  of  his  prior  lien,  a  charge  for  improve- 
ments voluntarily  made.  Such  a  principle  has  never  found  foot- 
ing in  New-Jersey.  The  authority  from  Powel,  is  the  dictum 
of  a  Mr.  Coventry,  of  Lincoln's  Inn  ;  it  is  hot  supported  by  the 
cases.  The  true  doctrine  in  that  book,  and  in  the  chancery  of 
New- York,  is,  that  when  the  repairs  are  necessary  for  the  pro- 


OCTOBER  TERM,  1830.  131 

Clark  and  Smith  v.  Smith  et  al. 

tection  of  the  estate,  they  may  be  allowed.  The  mortgagor,  it 
seems,  has  his  veto.  In  1  Ball  &  B.  385,  Lcrd  Manners  says, 
the  mortgagor  should  at  once  be  deprived  of  the  necessity.  Haight 
is  not  entitled  to  the  money  on  this  ground  ;  nor  do  the  agree- 
ments with  Tilley  and  -the  Deforests  avail  him  any  thing;  they 
are  under  seal ;  they  speak  for  themselves,  and  clearly  show  the 
intent  of  the  parties.  The  object  was  to  extinguish  the  outstand- 
ing incumbrances;  the  parties  only  released  to  Haight  such  right 
to  the  mill,  as  they  had  under  the  mortgage  and  judgment,  but 
did  not  transfer  the  debts.  Haight  acted  on  the  belief  that  the 
property  would  not  bring  more  than  nine  thousand  dollars,  and 
in'  that  view  he  dealt  with  Tilley  and  Deforests.  When  the  final 
arrangement  was  made  with  the  bank,  they  stipulated  to  assign 
and  transfer  to  Haight  the  bonds  and  mortgages  they  held  against 
Smith.  Haight's  difficulty  is,  that  he  treated  the  property  as  his 
own,  when  he  had  no  right  to  do  so,  and  could  have  been  under  no 
mistake  about  it.  If  he  has  expended  his  own  money  in  improv- 
ing the  property  of  another,  without  authority  for  so  doing,  and  at  a 
public  sale  has  been  compelled  to  pay  for  these  improvements,  and 
suffered  by  it,  he  has  no  reason  to  complain;  but  from  the  circum- 
stances of  this  case,  it  does  not  follow  that  he  has  suffered  any  loss. 
He  occupied  the  property  a  year  before  the  sale,  without  account- 
ing to  any  one,  so  far  as  appears,  and  the  rents  and  profits  ought 
to  at  least  to  be  an  equivalent  for  the  improvements. 

/.  H.  Williamson,  for  the  petitioner,  in  reply. 

Any  delay  in  the  suit  is  not  to  be  imputed  to  Haight;  he 
was  not  a  party.  The  property  was  abandoned  by  Smith  and 
his  assignee;  his  tenant  also  abandoned  it,  and  the  keys  were 
delivered  up  to  the  agent  of  the  bank.  It  was  after  this  that 
Haight  entered  into  the  property,  not  for  the  purpose  of  specu- 
lation, or  with  any  fraudulent  intent,  but  with  correct  and  proper 
views.  The  property  was  so  circumstanced,  that  a  sale  was  ne- 
cessary, and  he  expected  to  become  the  purchaser;  it  was  in  a 
dilapidated  state,  unfit  for  use;  he  adopted  the  plan  of  taking  up 
or  extinguishing  the  liens;  he  agreed  with  the  bank  for  the  pay- 


132  CASES  IN  CHANCERY. 

Clark  and  Smith  v.  Smith  et  al. 

ment  of  their  whole  debt,  including  their  judgment,  and  made  ar- 
rangements for  securing  the  control  of  Tilley's  mortgage,  and  the 
judgment  of  Deforests.  After  this,  he  repaired  and  improved  the 
property.  In  consequence  of  his  faking  possession,  and.  making 
these  improvements,  the  property  has  sold  for  a  much  greater  sum 
than  it  otherwise  would.  He  now  claims  for  the  amount  of  Til- 
ley's  mortgage,  and  Deforests' judgment  and  for  repairs. 

1.  Tilley's  mortgage  has  not  been  paid ;  if  not  extinguished,  it 
remains  a  lien  on  the  property.  A  court  of  equity  is  never  embar- 
rassed by  technical  forms;  it  looks  at  the  intention  of  the  parties. 
Tilley  has  parted  with  his  mortgage;  if  there  was  no  intention 
to  extinguish  it  for  the  benefit  of  Smith,  it  remains  for  the  benefit 
of  Haight.  It  is  not  merged  in  the  legal  estate ;  the  law  will  not 
endure  a  legal  and  equitable  estate  in  the  same  person;  but  equity 
will  preserve  these  two  interests  distinct,  to  effectuate  justice,  and 
the  intention  of  the  parties.  18  Ves.jr.  69;  6  John.  C,  R.  417. 
What  then  was  the  intent  of  the  contract  between  Tilley  and 
Haight?  From  the  agreement  it  appears,  that  Haight  desired  to 
secure  himself;  Tilley's  object  was  the  same.  It  could  not  have 
been  the  object  of  Haight  to  extinguish  the  mortgage  for  the  be- 
nefit of  Smith,  or  his  general  creditors.  The  instrument  may  be 
corrected  so  as  to  carry  into  effect  the  intention  of  both  parties, 
and  secure  Haight.  Tilley  does  not  object  to  it ;  no  one  objects 
but  Smith  ;  the  transaction  was  fair  as  it  respected  him  ;  it  did 
not  injure  him  in  any  way ;  he  is  safe,  on  our  doctrine.  If  Haight 
raises  the  money  on  the  mortgage,  a  court  of  equity  will  pro- 
tect Smith  against  the  bond  ;  if  it  is  not  paid  on  the  mortgage,  then 
he  is  liable  on  the  bond;  he  has  no  right  to  complain.  The 
master  supposes  that  the 'agreement  between  Tilley  and  Haight, 
operated  as  an  extinguishment  of  the  mortgage;  we  think  not. 
In  equity,  a  release  will  have  the  operation  intended  by  the  parties. 
2  Mason  R.  531.  The  release  should  have  been  considered  as 
continuing  and  preserving  the  mortgage,  for  the  benefit  of  Haight. 
No  actual  transfer  of  a  bond  and  mortgage  is  necessary  in  equity 
to  vest  the  right.  We  admit  that  at  this  day,  a  mortgage  cannot 
be  assigned,  without  the  debt,  so  as  to  authorize  the  assignee  to 
bring  ejectment;  but  does  it  operate  as  an  extinguishment?  We 
think  not;  to  give  it  that  effect,  in  this  instance,  would  violate 


OCTOBER  TERM,  1830.  133 

Clark  and  Smith  v.  Smith  et  al. 

the  intention  of  both  parties.     The  judgment  of  Deforests  stands 
on  the  same  footing. 

2.  As  to  the  claim  for  repairs,  the  quantum  is  not  now  the  sub- 
ject of  consideration  ;  that  is  for  the  master.  It  is  enough  for  us 
to  show,  that  Haight  made  necessary  repairs  ;  it  is  not  denied 
that  he  made  improvements  and  repairs.  The  evidence  proves, 
that  he  expended  a  large  amount  in  repairs,  much  of  it  for  the 
preservation  of  the  property,  by  which  its  value  was  greatly  en- 
hanced. Without  this,  there  would  have  been  no  surplus  to  con- 
tend about.  Smith  is  not  injured  ;  he  stood  by,  and  made  no  ob- 
jection to  the  improvements;  to  object  to  it  now,  is  contrary  to  all 
equity  and  conscience.  They  refuse  to  pay  even  the  ground  rent. 
Ground  rent  and  taxes,  are  always  paid  by  the  person  in  posses- 
sion, and  allowed.  A  mortgagee  in  possession,  is  always  allowed 
for  necessary  repairs ;  the  decision  in  John.  R.  is  correct.  There 
the  claim  was  for  clearing  wild  lauds,  and  in  that  case  the  chan- 
cellor allowed  for  necessary  reparation.  They  say  Haight  was  a 
volunteer;  if  so,  he  did  not  injure  Smith;  he  took  possession 
when  no  one  else  would,  and  made  it  bring  more  than  it  other- 
wise would  have  done.  We  make  no  claim  for  the  new  ma- 
chinery put  in  ;  notice  was  given  at  the  sale  that  this  would  be 
taken  out.  This  was  not  done  to  embarrass  the  sale,  but  to  re- 
move difficulty.  Every  one  knew  what  he  was  going  to  buy.  But 
it  is  said  Smith  has  not  had  the  benefit  of  the  rents;  and  the  re- 
pairs ought  to  be  satisfied  from  them.  This  Question  cannot  now 
arise.  If  the  bank  were  in  possession,  the  rents  and  profits 
should  have  been  brought  in  before  the  master.  Haight  cannot 
be  charged  with  rents,  before  he  came  into  possession.  We  are 
entitled  to  an  account,  for  necessary  repairs,  and  think  the  sur- 
plus money  cannot,  on  any  principle,  be  awarded  to  Garrabrants; 
it  belongs  to  Til  ley.  or  Deforests,  or  to  Haight. 

THE  CHANCELLOR.  The  first  matter  for  inquiry  is,  whether 
the  petitioner  can  make  lawful  claim  to  any  part  of  this  surplus 
money,  by  virtue  of  the  releases,  or  assignments,  (as  they  have 
been  called,)  from  Tilley  and  Deforests. 

On  this  part  of  the  case,  I  am  perfectly  satisfied  with  the  mas- 
ter's report. 

If  Haight  can  claim  under   these  assignments,  it  must  be  on 


134  CASES  IN  CHANCERY. 

Clark  and  Smith  v.  Smith  et  al. 

the  ground,  that  they  vested  in  him  all  the  rights  and  interest  of 
these  judgment  and  mortgage  creditors ;  that  the  debts  them- 
selves, or  the  right  to  receive  them,  were  transferred  to  him.  Is 
this  so?  Let  us  look  at  the  instrument,  which  has  been  called  the 
assignment  of  the  Tilley  mortgage.  It  states  that  Tilley  had  a 
mortgage  oil  the  mills  and  property  in  question,  given  by  Smith, 
for  about  one  thousand  five  hundred  and  sixty-one  dollars  ;  that 
that  were  prior  incumbrances  on  the  property,  to  the  amount  of 
about  nine  thousand  one  hundred  and  forty  dollars,  which  had 
been  purchased  by  Haight ;  that  as  the  premises  were  not  consi- 
dered worth  any  more  than  those  prior  incumbrances,  and  there- 
fore furnished  no  security  to  Tilley,  for  the  amount  so  due  to  him 
as  aforesaid  •  and  as  the  said  W.  Haight  wished  to  take  possess- 
sion  of,  and  improve  the  said  property,  and  to  extinguish  all  in- 
cumbrances upon  the  same;  therefore,  to  enable  the  said  W. 
Haight  to  extinguish  the  outstanding  incumbrances,  he  released, 
(for  the  sum  of  one  hundred  dollars,)  "  all  the  right,  title  and  in- 
terest, which  he,  the  said  Jonah  Tilley  had,  in  and  to  the  said 
cotton  mill,  machinery  and  premises,  by  virtue  of  said  mortgage." 

I  see  nothing  in  this  instrument,  that  looks  like  a  transfer  of 
the  debt  to  Haight.  Tilley  released  his  mortgage  interest,  and 
nothing  more  ;  it  was  to  enable  Haight  to  extinguish  the  encum- 
brance on  the  property  he  was  about  to  own ;  it  was  considered 
that  the  property,  with  the  load  of  incumbrances  on  it  prior  to  the 
Tilley  mortgage,  furnished  no  kind  of  security  to  Tilley  for  his 
debt ;  and  therefore,  he  gave  it  up  for  the  sum  of  hundred 
dollars,  as  mentioned  in  the  instrument;  the  debt,  then,  which 
was  the  principal,  remained  in  Tilley,  and  the  mortgage,  which 
was  the  security  for  the  debt,  was  given  up  to  Haight  for  his 
benefit. 

What  rights  then,  had  Haight,  under  the  mortgage  thus  re- 
leased to  him?  Could  he  hold  it  on  the  property;  and  if  the  pro- 
perty brought  at  sheriff's  sale  more  than  enough  to  satisfy  the 
prior  incumbrances,  could  he  take  the  surplus  and  appropriate  it 
to  the  mortgage,  and  thereby  extinguish  so  much  of  the  debt  it- 
self in  the  hands  of  Tilley?  Surely  not.  Tilley  never  parted 
with  his  debt ;  the  giving  up  of  the  mortgage  did  not  operate  to  ex- 
tinguish the  debt,  or  to  impair  the  claim  against  the  other  property 
of  Smith,  or  against  his  person ;.  he  had  no  other  right,  under  the 


OCTOBER  TERM,  1830.  135 


Clark  and  Smith  v.  Smith  et  al. 


assignment,  as  I  conceive,  than  the  right  of  exonerating  the  pro- 
perty from  the  operation  of  the  mortgage ;  the  mortgage  was  se- 
parated from  the  debt,  and  vested  no  interest  whatever  in  Haight. 
Chancellor  Kent,  in  his  commentaries,  says,  "  The  assignment  of 
the  interest  of  the  mortgagee  in  the  land,  without  the  assignment 
of  the  debt,  is  considered  to  be  without  meaning  or  use.  This 
is  the  language  of  the  courts  of  law,  as  well  as  of  the  courts  of 
equity,  and  the  common  sense  of  the  parties.  The  spirit  of  the 
mortgage  contract,  and  the  reason  and  policy  of  the  thing,  are  with 
the  doctrine."  4  Kent,  186.  Could  Haight  have  maintained  an 
action  of  ejectment,  in  a  court  of  common  law,  on  this  mortgage, 
without  the  bond  ?  Could  he,  without  it,  have  obtained  a  fore- 
closure and  sale  in  this  court  ?  Could  he  have  transferred  the 
mortgage,  in  any  way,  so  as  to  create  an  interest  in  the  purchaser? 
If  he  could,  he  might,  by  some  of  these  means,  have  satisfied  the 
debt,  and  cut  off  the  holder  of  the  bond.  This  cannot  be ;  nor  was 
such  the  intention  of  the  parties.  The  object  of  both,  as  manifested 
by  the  instrument,  was  to  exonerate  the  property  from  the  lien  of 
the  mortgage;  and  this  was  effectually  done,  or  the  power  to  do  it 
was  effectually  giveji. 

The  claim  under  the  judgment,  in  favor  of  the  Deforests,  stands 
upon  the  same  footing.  After  reciting  that  the  prior  incumbrances 
on  the  property  exceeded  in  amount  the  value  of  the  property, 
and  formed,  therefore,  no  security  for  their  judgment,  they, 
for  the  sum  of  thirty-three  dollars  and  seventy-five  cents,  and 
for  the  purpose  of  enabling  Haight  to  extinguish  the  outstanding 
incumbrances,  "  release  to  the  said  Warren  Haight,  all  the  right, 
title  and  interest,  which  they  have  in  said  cotton  mills,  ma- 
chinery and  premises,  by  virtue  of  said  judgment."  The  judg- 
ment remains,  and  it  remains  the  property  of  the  Deforests  :  but 
this  estate  is  to  be  no  longer  subject  to  its  lien.  The  agreement 
was  not  that  so  much  of  the  property  bound  by  the  judgment, 
should  pass  to  Haight,  and  that  the  money  raised  by  the  sale,  af- 
ter satisfying  prior  incumbrances,  should  go  to  Haight,  but  that 
the  property  should  no  longer  be  subject  to  the  lien  of  the  judg- 
ment. 

I  am  clearly  of  opinion,  therefore,  that  the  petitioner  has  no  just 
or  equitable  claim  to  any  part  of  this  surplus  money,  either  in 
virtue  of  the  mortgage  of  Tilley,  or  the  judgment  of  the  Deforests. 


130  CASES  IN  CHANCERY. 

Clark  and  Smith  v.  Smith  et  al. 

It  is  asked,  to  whom  is  the  surplus  money  to  go?  If  not  to 
Haight,  then  certainly  not  to  Tilley,  or  the  Deforests;  their  right 
under  the  mortgage  and  judgment  are  gone ;  they  have  given  them 
up,  and  agreed  to  look  elsewhere  for  their  money.  It  follows,  as  a 
matter  of  course,  that  it  must  be  paid  to  the  assignee  of  Smith,  the 
original  debtor;  no  other  person  cart  claim  it. 

It  is  said,  however,  that  these  assignments  were  made  for  the 
benefit  of  Haight,  and  that  by  this  construction,  the  express  inten- 
tion of  the  parties  will  be  defeated.  If  this  should  be  the  case,  will 
it  result  from  the  construction  now  given,  or  from  the  situation  in 
which  Mr.  Haight  stood  at  the  time,  and  the  course  he  pursued  in 
that  situation  ?  He  was  a  stranger  to  the  original  transactions ;  he 
was  let  in  by  persons  claiming  rights,  but  not  by  the  real  owner; 
he  proceeded  to  buy  up,  and  extinguish  the  incumbrances  ;  treated 
the  property  in  every  respect  as  his  own ;  repaired,  altered  and 
improved  it ;  and  all  the  while  appeared  to  forget  that  the  person 
holding  the  equity  of  redemption,  stood  behind  him.  Mr.  Smith, 
and  his  rights,  appear  to  have  been  lost  sight  of  entirely  ;  he  had, 
at  that  time,  taken  the  benefit  of  the  insolvent  laws;  all  his  inter- 
est, of  what  kind  soever,  had  been  assigned  over,  and  it  is  not  to 
be  wondered  at  that  his  right  of  redemption  should  have  been 
considered  of  too  little  value  to  be  attended  to,  when  we  look 
at  the  amount  of  incumbrances;  and  when  we  know,  too,  that  in 
the  state  of  New-Jersey,  assignees  of  insolvent  debtors  too  often  pay 
little  or  no  attention  to  the  property  assigned  to  them  or  the  rights 
of  those  interested. 

If  these  releases  do  not  operate  to  the  benefit  of  Mr.  Haight,  it 
cannot  properly  be  imputed  to  the  construction  now  put  upon 
them  ;  he  ought  to  have  secured  the  equity  of  redemption,  and  then 
he  would  have  been  perfectly  safe. 

I  proceed,  now,  to  consider  the  claim  set  up  by  the  petitioner,  to 
allowance  for  necessary  repairs  and  improvements,  after  the  pro- 
perty came  into  his  possession.  It  appears  by  the  evidence  taken 
before  the  master,  that  Haight  went  to  a  considerable  expense  in 
improving  and  repairing  the  property,  and  that  he  put  new  ma- 
chinery in  the  mill,  to  enable  him  to  operate  with  greater  benefit. 
The  new  machinery  could  not  belong  to  Smith  ;  it  was  expressly 
excepted  at  the  sale,  and  cannot  enter  into  this  controversy.  The 
single  inquiry  therefore  is,  whether  Haight  can  be  allowed  for 


OCTOBER  TERM,  1830.  137 


Clark  and  Smith  v.  Smith  et  al. 


any  repairs  or  improvements,  made  while  he  held  the  property, 
and  before  the  sale. 

He  came  into  possession  under  the  Paterson  bank,  and  others, 
being  mortgage  creditors;  he  may  be  considered,  therefore,  as  a 
mortgagee  in  possession ;  and  yet,  when  it  is  seen  that  he  came 
in  purely  as  a  volunteer,  I  am  not  sure  that  he  ought  to  be  placed 
in  a  situation  quite  so  favorable.  Whether  a  mortgagee  in  pos- 
session shall  be  allowed,  in  accounting  with  the  mortgagor,  for  re- 
pairs and  permanent  improvements,  is  a  point  which  has  fre- 
quently been  discussed  in  courts  of  equity;  as  also,  how  far  he 
shall  be  allowed  for  costs  and  expenses,  and  generally,  for  care  and 
trouble  in  taking  charge  of  the  estate. 

When  a  mortgagee  in  possession,  is  necessarily  put  to  expense 
in  defending  or  securing  the  title  of  the  property,  he  is  entitled 
to  an  allowance  for  the  expenditure.  In  Loman  v.  Hide,  2 
Vern.  185,  the  second  mortgagee  brought  a  bill  to  redeem  the 
first  mortgagee,  who  had  been  put  to  a  great  charge  in  foreclo- 
sing his  mortgage;  and  it  was  decreed  that  these  charges  should 
be  allowed  him  in  the  account.  So  in  Woolley  v.  Drag,  2 
Anstru.  551,  the  mortgagee  being  in  possession,  had  advanced 
money  for  fines,  on  the  renewal  of  leases,  under  which  the  pre- 
mises were  held,  and  they  were  allowed  him.  The  only  ques- 
tion made,  was  whether  he  should  have  full  interest  on  them. 
And  in  Godfrey  v.  Watson,  3  A'tk.  518,  Lord  Hardwicke  said, 
if  a  mortgagee  had  expended  money  in  supporting  the  title  of 
the  mortgagor  to  the  estate,  where  his  title  had  been  impeached, 
it  might  be  added  to  the  debt  of  the  mortgagee.  On  the  same 
principle,  taxes,  if  paid  by  the  mortgagee,  are  held  to  be  a  pro- 
per charge  against  the  estate :  1  Hopk.  283,  Faine  v.  Winans. 
But  a  mortgagee  cannot  charge  for  trouble  and  expenses  in  re- 
ceiving the  rents  and  profits,  although  there  may  be  a  private 
agreement  for  such  allowances  between  the  mortgagee  and  mort- 
gagor: French  v.  Burr,  2  Atk.  120;  Godfrey  v.  Watson, 
3  Atk.  518;  Bonithon  v.  Hockmore,  1  Vern.  316.  So  the  ex- 
pense of  insurance  is  one  for  -which  no  allowance  will  be  made, 
it  being  considered  as  the  act  of  the  mortgagee  for  his  own  be- 
nefit, and  for  which  he  has  no  right  to  look  to  the  mortgagor 
for  remuneration:  5  Pick.,  Saunders  v.  Frost;  3  Pow.  on 
Mortg.  957. 


138  CASES  IN  CHANCERY. 

Clark  and  Smith  v.  Smith  et  al. 

As  it  respects  improvements,  there  appears  to  be  some  con- 
trariety of  decisions;  but  I  have  no  hesitation  in  saying  that 
when  a  mortgagee  in  possession,  undertakes,  without  the  con- 
sent and  approbation  of  the  mortgagor,  to  make  improvements 
on  the  property,  though  they  may  be  of  a  beneficial  and  per- 
manent character,  he  does  it  at  his  peril,  and  has  no  right  to 
look  for  an  allowance  at  the  hands  of  the  mortgagor.  This  is 
the  sound  doctrine  of  this  court,  and  it  is  founded  on  principles 
of  equity  and  good  conscience.  Jt  would  be  unjust  that  a  mort- 
gagee, or  a  voluntary  purchaser  under  him,  getting  possession 
of  the  mortgaged  premises,  should  be  at  liberty  to  improve  it  as 
he  thought  most  beneficial  to  himself,  and  thereby,  perhaps, 
deprive  the  mortgagor  of  the  power  of  redeeming.  The  im- 
provements may  be  beneficial  in  themselves,  but  if  the  mortga- 
gor does  not  choose  to  have  them,  the  mortgagee  has  no  right 
to  impose  them  upon  him.  .In  Bostock  v.  Blakeney,  2  Bro. 
C.  C.  658,  there  was  a  trust  fund  created  by  will,  to  be  laid 
out  in  the  purchase  of  lands.  The  estate  was  purchased,  and 
part  of  the  trust  money  was  laid  out  in  building  a  house,  and 
making  improvements.  Lord  Thurlow  held,  that  it  was  a  mis- 
application of  the  fund,  and  refused  to  allow  it,  although  the  es- 
tate itself  would  be  benefited.  The  current  of  English  autho- 
rities is  in  accordance  with  this  one ;  the  only  variation  is,  where 
lasting  improvements  have,  in  One  or  two  instances,  been  erro- 
neously, or  by  a  latitude  of  construction,  placed  under  the  head 
of  repairs:  Swan  v.  Swan,  8  Price,  518;  and  the  late  case 
of  Marshall  v.  Case,  Mich.  1824,  cited  in  3  Powell,  957.  Even 
in  those  cases,  the  ordinary  rule  is  admitted,  that  money  laid 
out  in. improving  premises,  dees  not  create  a  lien.  The  same  safe 
rule  has  been  adopted  in  our  own  courts.  In  Russd  v.  Blake,  2 
Pick.  505,  it  is  expressly  decided  that  a  mortgagee  cannot  claim 
allowance  for  improvements  made  on  the  mortgaged  premises, 
but  only  for  keeping  them  in  repair;  and  in  Cable  v.  Moore, 
1  Johns.  Ch.  Rep.  387,  and  1  Johns.  Ch.  Rep.  27,  Green 
v.  Winter,  the  chancellor  says,  such  an  allowance  cannot  be 
mr.de  consistently  with  established  principles.  There  certainly 
can  be  no  hardship  in  this  rule.  A  mortgagee  is  no  more  bound 
to  improve  the  estate,  than  the  mortgagor  is.  If  the  mortga- 
gor make  improvements  on  the  premises,  after  giving  the  mort- 


OCTOBER  TERM,  1830.  139 


Clark  and  Smith  v.  Smith  et  al. 


gage,  the  whole  of  them  shall  go  to  satisfy  the  mortgage  if  it 
be  necessary.  He  cannot  say  to  the  mortgagee,  these  improve- 
ments were  not  embraced  originally  under  your  lien,  and  there- 
fore you  are  not  to  have  the  benefit  of  them.  And  so  if  the 
improvements  are  made  by  the  mortgagee,  they  are  voluntarily 
made,  and  he  cannot  turn  round  afterwards  and  claim  allow- 
ance for  them.  They  will  enure  to  the  benefit  of  the  estate,  and 
if  he  should  suffer  a  loss,  the  maxim  will  well  apply,  "  volenti 
non  fit  injuria" 

The  principal  difficulty  arises  on  the  subject  of  repairs.  It  is 
well  settled,  that  a  mortgagee  in  possession  is  not  bound  to  ex- 
pend money  on  the  mortgaged  premises,  any  further  than  to  keep 
them  in  necessary  repair :  Godfrey  v.  Watkins,  3  Atk.  518  ; 
Russell  v.  Smithies,  1  Anst.  96 ;  and  for  such  expenditures, 
when  incurred,  he  will  receive  allowance:  Moore  v.  Cable,  1 
Johns.  C.  R.  385.  Even  this  has  been  looked  on  with  great  jea- 
lousy, and  I  think  with  some  reason.  And  in  the  case  of  Trim- 
lesion  v.  Hamill,  1  Ball  &  Beat.  385,  the  court  held  that  even 
in  the  case  of  repairs  absolutely  necessary,  it  was  incumbent  on 
the  mortgagee  to  apprise  the  mortgagor,  as  soon  as- possible,  of  the 
extraordinary  expenditure.  I  see  no  use  in  such  notice,  after  the 
expenditure  is  made.  If  the  court  had  gone  on  the  broad  prin- 
ciple that  no  repairs  should  be  made,  without  the  previous  consent 
of  the  mortgagor,  I  should  have  considered  it  a  safe  rule.  I  do 
not  see  that  this  case  has  been  followed  ;  ancf"  finding  the  law  set- 
tled that  an  allowance  is  to  be  made  for  repairs,  it  remains  to  in- 
quire what  are  the  repairs  for  which  the  party  may  claim  compen- 
sation. The  language  of  the  books  is,  "  necessary  repairs ;"  and 
this  language  has  been  construed  strictly.  In  Saunders  v.  Frost, 
already  cited,  it  was  sought  to  charge  as  repairs,  the  expenses  of 
making  an  aqueduct;  but  it  not  appearing  that  without  the 
aqueduct  the  mortgaged  premises  would  not  have  been  supplied 
with  water,  the  charge  was  disallowed.  In  Moore  v.  Cable,  1 
Johns.  C.  R.  387,  before  cited,  the  clearing  of  wild  land  was  not 
considered  a  necessary  reparation  ;  and  Ld.  Manners  in  the  case 
from  Ball  &  Beatty,  above  referred  to,  puts  such  allowance  oil 
the  ground  of  absolute  necessity  for  the  protection  of  the  estate. 

I  am  satisfied  to  keep  within  the  strict  rule.  It  appears  by  the 
testimony,  that  the  mill  and  machinery  was  in  rather  better  order 


140  CASES  IN  CHANCERY. 

Clark  and  Smith  v.  Smith  et  al. 

when  Haight  took  possession  of  it,  than  when  Smith  left  it.  It 
had  received  some  repairs.  If  the  mill  could  have  been  used  with 
the  machinery  as  it  was  when  Haight  voluntarily  took  possession 
of  it;  if  the  repairs  made,  were  for  the  purpose  of  increasing  its 
speed,  or  enabling  it  to  do  a  greater  amount  of  work  than  it  had 
formerly  done,  when  its  machinery  was  in  order,  so  as  to  enhance 
the  benefit  of  the  possession,  then  no  allowance  is  to  be  made  for 
the  repairs.  If  any  expense  was  incurred  in  preparing  the  mill 
to  receive  the  new  machinery,  which  was  not  sold,  and  which 
was  exclusively  for  the  benefit  of  Haight,  such  expense  cannot 
be  allowed.  The  charge  for  painting  is  not  considered  a  proper 
charge.  Mr.  Rogers,  one  of  the  witnesses,  says  the  mill  could 
have  been  worked  with  the  old  machinery  without  repairs,  but 
not  to  so  good  an  advantage.  At  the  same  time,  he  says,  the  ma- 
chinery was  pretty  much  run  down,  and  wanted  repairing. 
Again,  he  says,  the  improvements  put  by  Haight  upon  the  water 
wheel,  the  gearing  for  the  water  wheel,  and  the  bridge  over  the 
race,  were  indispensable.  If  they  vrere  really  indispensable  to  keep 
the  mill  in  operation,  they  ought  to  be  allowed.  It  is  manifest, 
that  as  soon  as  -Haight  got  possession,  and  had  got  in  the  incum- 
brances,  as  he  supposed,  he  went  to  work  on  the  property.  His 
object  was  to  improve  it  for  his  own  benefit ;  and  in  some  mat- 
ters, it  may  be  difficult  to  distinguish  between  necessary  repairs, 
and  highly  beneficial  improvements  ;  but  it  may  be  done.  I  am 
induced  to  think,  from  the  evidence,  that  some  repairs  have  been 
made  that  call  for  an  allowance.  I  cannot  undertake  to  say  there 
are  none.  I  shaft  therefore  refer  it  back  to  the  master  to  take 
an  account  of  such  repairs,  if  any,  and  of  the  proper  allowance  to 
be  made  therefor. 

As  to  the  claim  for  the  judgment  and  execution  of  the  Paterson 
bank,  there  seems  to  be  no  difficulty.  They  bound  the  property 
before  the  sale,  and  must  be  satisfied.  Whether  the  agreement 
between  the  bank  and  Haight  operated  as  an  assignment,  or  not, 
can  make  no  d inference.  The  whole  matter  of  appropriation  was 
considered  as  open,  and  if  the  money  is  paid  to  the  bank,  they 
must,  under  their  arrangement,  receive  it  for  the  benefit  of  Haight. 

All  further  directions  are  reserved. 

CITED  in  Elmer  v.  Loper,  10  C.  E.  Gr.  482. 


OCTOBER  TERM,  1830.  141 

Herbert  v.  Ex'r  of  Tuthill  et  al. 

JOHN  HERBEET  v.  NICHOL  SMITH,  SURVIVING  EXECUTOR  OF 
B.  TUTHILL,  DEC'D,  AND  OTHERS. 


B.  Tuthill,  by  his  will,  after  some  specific  bequests,  ordered  "that  all  the  rest  of 
his  estate,  real  and  personal,  be  sold  by  his  executors  and  turned  into  money 
as  soon  after  his  decease  as  conveniently  might  be,  and  distributed  among 
his  children  in  the  following  proportions,  viz :  "  two  shares  to  each  of  his  sons, 
and  one  share  to  each  of  his  daughters;"  and  provided  "that  none  of  the 
legacies  should  lapse  by  the  death  of  any  of  his  children,  but  that,  in  case  of 
such  death,  the  share  of  the  deceased  child  should  go  to  his  or  her  issue  in 
the  proportions  aforesaid  ;  and  if  such  deceased  child  should  leave  no  iasue, 
then  his  or  her  share  should  go  to  and  among  his  surviving  children,  in  the 
like  proportions." 

Upon  the  death  of  the  testator  his  children  took  vested  interests  in  their  respect- 
ive shares,  although  payment  could  not  be  made  until  after  the  land  should 
be  sold,  which  in  no  wise  affected  the  vesting  of  the  estate. 

By  this  bequest  the  whole  interest  or  estate  in  their  respective  shares,  and  not 
a  life  estate  merely,  vested  in  the  children,  notwithstanding  there  are  no 
words  of  perpetuity  cr  inheritance;  the  intent  being  clear. 

The  provision  in  case  of  the  death  of  any  of  the  children,  with,  or  without  issue, 
refers  to  their  death  in  the  life-time  of  the  testator ;  and  goes  no  farther  than 
to  prevent  the  lapse  of  their  legacies.  It  does  not  amount  to  a  limitation 
over,  on  the  death  of  a  legatee  after  the  testator's  death,  and  before  receiving 
the  legacy. 

The  land  not  being  devised,  but  a  mere  power  of  sale  given  to  the  executors ; 
between  the  death  of  the  testator  and  sale  of  the  land,  the  beneficial  interest 
was  in  the  heirs  ;  and  they  were  entitled  to  the  rents  and  profits. 

The  heirs  had  also  a  right  to  make  a  disposition  or  transfer  of  their  vested  inter- 
est. William,  one  of  the  sons,  having  previous  to  the  sale  mortgaged  his 
proportion  of  the  lands  to  the  complainant,  to  secure  a  debt,  and  drawn  an 
order  on  the  executor  to  pay  the  proceeds  of  his  share,  when  sold,  to  the 
mortgagee,  which  was  accepted  by  the  executor  ;  the  money  was  fixed  in  the 
hands  of  the  executor,  and  the  mortgagee  entitled  to  receive  the  amount  of 
his  debt  out  of  the  proceeds. 

This  order  was  not  a  bill  of  exchange,  but  a  direction  to  the  executor  to  pay  such 
part  of  this  money  to  the  mortgagee,  for  a  past  valuable  consideration  re- 
ceived; which  the  executor  by  his  acceptance  agreed  to  do. 

A  subsequent  assignment  by  the  same  legatee  to  the  executor  of  his  share  in 
the  estate,  is  subject  to  the  prior  vested  right  of  the  mortgagee. 


In  January,  1812,  Benjamin  Tuthill,  of  Middlesex,  made  his 
last  will  and  testament,  and  in  1815  died,  leaving  the  same  unre- 
voked.  After  giving  some  specific  bequests,  he  orders  "  that  all 
the  rest  of  his  estate,  real  and  personal,  should  be  sold  by  his  ex- 
ecutors and  turned  into  money  as  soon  after  his  decease  as  con- 


142  CASES  IN  CHANCERY. 

Herbert  v.  Ex'r  of  Tuthill  et  al. 

veniently  might  be,  and  distributed  among  his  children  in  certain 
modes  and  proportions  therein  specified.  He  then  provides  that 
neither  of  the  above  legacies  or  shares  shall  lapse  by  the  death  of 
either  of  his  children,  but  in  case  of  such  death  the  share  of  such 
deceased  child  shall  go  to  his  or  her  issue ;  and  appointed  his  wife 
Anny,  his  son-in-law  Nichol  Smith,  and  his  son  William  Wood- 
hull  Tuthill,  his  executors.  Smith  and  W.  W.  Tuthill  proved 
the  will  and  took  upon  themselves  the  burthen  of  the  trust.  The 
bill  charges  that  W.  W.  Tuthill  took  possession,  as  heir  at  law, 
of  the  share  of  the  real  estate  descended  to  him  from  his  father, 
and  received  the  rents,  issues  and  profits  thereof:  that  he  became 
indebted  to  the  complainant  in  the  sum  of  six  hundred  dollars,  for 
which  he  gave  him  his  bond  and  a  mortgage  on  the  undivided 
two-ninth  parts  of  three  hundred  and  ninety-one  acres,  being  part 
of  the  real  estate  formerly  of  Benjamin  Tuthill,  deceased :  that 
he  afterwards  became  indebted  to  the  complainant  in  the  further 
sum  of  one  hundred  and  twenty-five  dollars,  for  which  he  gave  him 
another  bond  and  also  a  mortgage  on  the  undivided  two-ninth 
parts  of  eighty-three  acres  of  salt  meadow,  being  also  parcel  of  the 
real  estate  of  said  deceased.  That  the  complainant,  discovering 
that  the  premises  were  held  by  Tuthill  subject  to  a  power  of  sale 
given  by  the  testator,  and  hearing  that  Nichol  Smith  was  the 
acting  executor  and  received  and  disbursed  the  money,  he  applied 
to  the  executors  to  know  the  particulars ;  and  was  informed  by 
Tuthill  that  it  was  his  intention  the  mortgage  should  cover  the 
lands,  not  only,  but  the  proceeds  of  the  lands,  and  for  further 
satisfaction  he  proposed  to  give  complainant  a  draft  on  Nichol 
Smith,  to  which  the  complainant  and  Smith  acceded  ;  the  draft 
was  accordingly  prepared,  by  which  Tuthill  directed  Smith,  his 
co-executor,  to  pay  to  the  complainant  or  his  order,  out  of  the 
portion  due  or  to  become  due  to  said  Tuthill  for  the  proceeds  of 
the  estate,  the  amount  of  the  debts  due  from  him  to  Herbert  the 
complainant;  which  order  was  accepted  by  Nichol  Smith  in  the 
following  manner:  "  I  accept  the  foregoing  order,  to  be  paid  out 
of  the  funds  above  mentioned  when  I  shall  receive  sufficient  for 
that  purpose."  The  bill  further  charges,  that  Smith,  with  the 
consent  of  the  other  executor,  sold  part  of  the  real  estate  and 
received  the  proceeds ;  but  refuses  to  pay  any  part  to  the  com- 
plainant, alleging  that  he  could  not  pay  a  part :  that  Tuthill  af- 


OCTOBER  TERM,  1830.  113 

Herbert  v.  Ex'r  of  Tuthill  et  al. 

terwards  became  insolvent,  and'  died,  leaving  Benjamin  Tuthill 
his  only  child  and  heir  at  law :  that  Smith  has  lately  sold  to 
Catharine  Wallace  the  residue  of  the  mortgaged  premises,  for 
six  thousand  five  hundred  dollars,  which  he  has  received  in  part, 
and  the  residue  is  secured  by  bond  and  mortgage  :  that  Smith 
has  been  again  personally  applied  to  for  payment  of  the  amount 
due  on  said  acceptance:  that  he  altogether  declines.  The  bill 
prays,  that  the  defendants  may  be  decreed  to  account  for  the 
amount  due  the  complainant :  that  the  debt  be  declared  a  lien 
on  the  funds  heretofore  received  by  Smith,  and  upon  the  mortgage 
debt  of  Catharine  Wallace,  and  be  paid  out  of  the  proceeds  of  the 
share  and  interest  of  the  said  Wm.  W.  Tuthill  in  the  real  and 
personal  estate  of  the  testator,  and  that  a  sale  of  the  mortgaged 
premises  be  made  for  that  purpose. 

The  defendant,  Smith,  in  his  answer  admits  the  two  mort- 
gages given  by  Tuthill  to  Herbert,  the  execution  and  acceptance 
of  the  draft  or  order;  but  alloges  that  the  acceptance  was  express- 
ed in  cautious  terms,  on  the  grounds,  as  understood  by  both  par- 
ties, that  William  W.  Tuthill  was  at  that  time  indebted  to  the 
estate  of  the  testator,  or  to  the  devisees,  in  a  considerable  sura  of 
money,  which  he  had  received  as  one  of  .the  executors  of  the  es- 
tate, out  of  the  personal  estate  of  said  testator,  and  appropria- 
ted to  his  own  use;  and  which  he  had  no  other  means  of  paying 
save  the  interest  he  had  or  might  have  in  the  estate.  He  admits 
the  sale  of  a  part  of  the  estate  as  charged  in*the  bill,  and  the  re- 
ceipt of  the  money;  but  says  that  William's  share  was  credited  on 
the  account  due  from  him  to  the  estate  or  the  devisees.  That  he 
deemed  himself  authorized  to  take  this  course,  both  on  the  ground 
of  his  responsibility  to  the  devisees,  as  well  as  the  ground  of  a 
certain  transfer  executed  by  William  to  the  defendant:  this  trans- 
fer is  dated  3d  September,  1817,  and  conveys  to  Smith  all  Wil- 
liam's interest  and  share  in  the  real  and  personal  estate,  for  the 
purpose  of  securing  to  Smith  and  the  devisees  the  sum  of  six  hun- 
dred and  thirty  dollars,  which  Tuthill  then  acknowledges  he  had 
received  of  the  estate  and  appropriated  to  his  own  use.  The  de- 
fendant admits,  that,  for  these  reasons,  he  did  refuse  to  pay  any 
money  to  complainant,  and  alleges  that  he  has  appropiated  Wil- 
liam's share  to  the  liquidation  of  the  debt  due  from  him  to  the 
estate  and  the  devisees,  and  denies  that  he  has  received  enough  to 


144  CASES  IN  CHANCERY. 

Herbert  v.  Ex'r  of  Tuthill  et  al. 

pay  it  off.  He  admits  the  sale  fo  Catharine  Wallace,  and  the  re- 
ceipt of  part  of  the  purchase  money ;  and  that  there  is  now  in 
his  hands  of  the  moneys  of  the  estate,  received  since  the  death  of 
William,  six  hundred  and  eighty-nine  dollars  and  seventy-six 
cents,  which  would  have  been  William's  share  under  the  will, 
had  he  been  living,  and  that  on  the  "receipt  of  the  balance  of  the 
purchase  money  that  amount  will  be  increased.  He  has  refused 
to  pay  over  this,  under  the  belief  that  on  the  death  of  William  the 
share  in  the  estate  of  his  father  descended  to  Benjamin  Tuthill, 
the  son  and  heir  at  law  of  William  ;  and  under  the  farther  belief 
that  the  draft  or  power  of  attorney,  remaining  unexecuted,  ceased 
and  became  void  on  the  death  of  William.  But  he  is  willing  to 
pay  over  the  money,  as.  fast  as  he  shall  receive  the  same,  to  such 
persons  as  are  rightfully  entitled  under  the  decree  of  the  court. 

G.  Wood,  for  complainant.  The  testator,  by  his  will,  does  not 
devise  his  real  estate/ but  gives  a  power  of  sale  to  his  executors  :  in 
the  mean  time  the  land  descended  to  -his  heirs.  W.  W.  Tuthill 
took  two-ninth  parts  as  an  heir  at  law,  subject,  under  the  power 
of  sale,  to  be  converted  into  cash,  which  he  then  takes  in  lieu  of 
it.  By  the  mortgages,  .W.  W.  Tuthill  transfers  pro  tanto,  and 
as  security  for  the  mortgage  debts,  his  interest  in  the  real  estate, 
to  the  complainant.  This  transfer,  in  equity,  would  embrace  the 
proceeds  of  the  sale,  when  the  land  should  be  converted  into  mo- 
ney. The  conversion  does  not  change  the  character  of  the  sub- 
ject, and  especially  not  for  the  purpose  of  defeating  a  fair  transfer. 
When  money  is  directed  to  be  laid  out  in  land,  or  land  to  be  con- 
verted into  money,  it  is  considered  in  equity  as  already  done : 
2  Mad.  C.  108.  This  land,  at  the  time  the  mortgage  was  given, 
would  be  considered  a  personal  fund,  and  the  mortgage  a  pledge 
of  personal  property.  The  draft  and  acceptance  of  10th  Februa- 
ry, 1817,  though  not  a  regular  bill  of  exchange,  had  the  effect  to 
give  the  complainant  a  lien  upon  the  funds  in  the  hands  of 
Smith,  when  received :  1  Ves.  sen.  280.  The  alleged  indebted- 
ness of  Tuthill  to  Smith  or  the  estate,  if  true,  could  not  defeat  the 
right  of  the  complainant.  Smith  acquired  no  right  to  the  funds 
till  the  assignment  by  Tuthill  to  him  of  the  3d  September,  1817, 
after  the  giving  of  the  mortgages  to  complainant,  and  the  accep- 
tance by  Smith  of  Tuthill's  draft. 


OCTOBER  TERM,  1830.  145 

Herbert  v.  Ex'r  of  Tuthill  et  al. 

J.  S.  Nevius,  for  the  defendants.  The  devise  of  the  real  estate 
to  be  sold  prevented  its  descent  to  the  heirs.  The  legal  estate 
vested  in  the  executors.  W.  W.  Tuthill  could  not  take  possession 
as  heir,  and  had  no  right  to  mortgage  it.  The  mortgage  to  com- 
plainant is  void.  The  will  gives  two-ninths  of  the  estate  to  W. 
W.  Tuthill,  without  any  words  of  inheritance  or  perpetuity;  he 
had  only  a  life  estate  in  the  legacy,  till  the  lands  were  sold  and 
money  paid  to  him  ;  this  did  not  happen  during  his  life;  he  there- 
fore could  not  pledge  or  transfer  it.  From  the  whole  will  it  ap- 
pears that  the  testator  meant  to  provide  for  the  issue  of  the  lega- 
tees, not  only  in  case  they  should  die  before  him,  but  at  any  time 
before  they  received  their  legacies;  and  the  intent  must  prevail  : 
4  Kent's  C.  519,  521.  The  instrument  given  by  W.  W.  Tuthill 
to  the  complainant,  called  an  order  on  the  executor,  is  in  every 
sense  a  power  of  attorney.  The  acceptance  of  Smith  was  no  more 
than  an  agreement  to  act  under  it,  in  an  event  that  never  hap- 
pened. Tuthill  in  his  life-time  had  power  to  revoke  this  authority, 
and  he  did  revoke  it  by  the  transfer  to  Smith.  His  death  at  least 
was  a  revocation.  Smith's  acceptance  did  not  vary  it,  for  he  did 
not  in  Tnthill's  life-time  receive  funds  to  satisfy  it.  If  the  com- 
plainant's claim  was  good  against  the  legacy,  he  should  look  to  the 
personal  representatives  of  Tuthill,  not  to  Smith.  If  his  claim 
was  good  against  Smith,  it  could  not  extend  beyond  the  amount 
actually  received  by  him,  after  deducting  the  amount  due  from 
Tuthill  to  the  estate.  The  will  being  so  ambiguous  as  to  render 
it  proper  the  executor  should  take  the  opinion  of  the  court  in  this 
case,  the  cost  ought  to  be  paid  out  of  the  fund  in  controversy  :  4 
John.  C.  C.  608. 

THE  CHANCELLOR.  The  first  inquiry  is,  what  interest  did  W. 
W.  Tuthill  take  under  the  will  of  his  father?  Most  clearly,  a 
vested  interest.  The  payment  of  the  distributive  share  of  Wil- 
liam, and  all  the  heirs,  could  not  be  made  until  after  the  land 
should  be  sold.  But  that  does  in  no  wise  affect  the  vesting  of  the 
estate.  The  principle  contended  for  by  the  defendant's  counsel, 
that  the  right  did  not  vest  until  the  money  was  received,  is  un- 
sound. There  is  a  case  to  be  found  in  6  Ves.jr.  159,  Gaskil  v. 
Harman,  in  which  the  master  of  the  rolls  held  that  a  residuary 
bequest  vested  only  as  the  property  was  received;  but  that  was 

K 


146  CASES  IN  CHANCERY. 

Herbert  v.  Ex'r  of  Tuthill  et  al. 

under  very  peculiar  circumstances,  not  necessary  to  be  explained, 
for  the  decree  was  afterwards  set  aside  by  Lord  Eldon  :  S.  C. 
11  Ves.  jr.  496.  What  estate  had  William  in  the  share  given 
him  ?  The  defendants  contend  it  was  a  life  estate  only,  and  that 
the  provision  in  the  will  against  lapsed  legacies  is  to  be  applied 
according  to  the  intention  of  the  testator;  not  to  lapsed  legacies 
only  according  to  their  technical  meaning,  but  to  all  the  legacies  in 
such  way  as  to  create  a  limitation  over  after  the  death  of  the  lega- 
tees, whether  before  or  after  the  death  of  the  testator.  And  in 
support  of  this  it  is  said  there  are  no  words  of  perpetuity  or  in- 
heritance in  the  will.  Such  words  are  not  necessary.  The 
intention  of  the  testator  appears  to  me  perfectly  clear.  He  orders 
his  executors  to  sell  all  the  residue  of  his  estate,  real  and  per- 
sonal, and  gives  certain  shares  of  the  proceeds  to  his  daughters, 
and  certain  other  shares  to  his  sons.  He  provides  that  the  legacies 
given  to  three  of  his  daughters  shall  not  be  paid  to  their  husbands, 
but  the  executors  shall  retain  them  and  pay  the  interest  to  the 
daughters  during  the  lives  of  their  husbands,  and  on  their  death 
then  to  go  to  the  daughters  or  their  children.  He  then  adds,  "  my 
will  further  is  that  neither  of  the  above  legacies  shall  lapse  by  the 
death  of  either  of  my  said  children,  but  in  case  of  such  death 
the  share  of  such  deceased  child  shall  go  to  his  or  her  issue,  in 
manner  and  proportions  aforesaid,  two  shares  to  boys  and  one 
share  to  girls;  and  if  such  deceased  child  shall  leave  no  issue, 
then  his  or  her  share  shall  go  to  and  among  my  surviving  chil- 
dren in  the  proportions  aforesaid."  This  was  a  careful  and  just 
provision  against  the  lapsing  of  any  of  these  legacies.  He  had 
seven  children,  some  of  whom  were  married,  and  he  might 
therefore  reasonably  expect  that  such  provision  would  be  neces- 
sary to  insure  to  his  descendants  a  proper  proportion  of  his  estate. 
I  see  nothing  in  the  will  to  carry  the  intention  of  the  testator  be- 
yond this.  The  legacy  or  share  was  given  to  William  without 
any  words  of  inheritance,  it  is  true,  but  the  whole  interest  or  es- 
tate vests,  unless  a  contrary  intention  is  clearly  shown  by  the 
will. 

Another  inquiry  is,  whether  the  bond  and  mortgage  given  by 
Tuthill  to  the  complainant  on  his  two-ninths  of  the  realty,  or  the 
order  on  Smith  and  the  acceptance  of  it  in  the  manner  in  which 
it  was  done,  gave  to  the  complainant  any  right  or  lien  on  the 


OCTOBER  TERM,  1830.  147 

Herbert  v.  Ex'r  of  Tuthill  et  al. 

share  or  the  proceeds  of  it.  There  is  no  doubt,  between  the  death 
of  the  testator  and  the  sale  of  the  laud,  the  beneficial  interest 
was  in  the  heirs.  William,  in  common  with  the  others,  was  en- 
titled to  the  rents  and  profits,  and  received  them.  And  there  is 
as  little  doubt  that  he  had  a  right  to  make  a  disposition  of  his 
vested  interest,  if  he  thought  proper  so  to  do.  How  far  the  mort- 
gage alone  might  have  operated  to  secure  to  the  mortgagee  the 
property,  or  so  much  of  it  as  was  necessary  to  satisfy  his  claim, 
it  is  unnecessary  to  determine.  The  complainant  rests  not  only 
on  the  mortgage,  but  on  the  special  agreement  entered  into  with 
Tuthill  and  Smith.  The  order  drawn  on  Smith  by  Tuthill,  in 
favor  of  Herbert,  was  not  a  bill  of  exchange,  and  could  have  no 
efficacy  as  a  commercial  instrument ;  but  it  was  nevertheless 
perfectly  competent  for  Tuthill  to  give  such  an  order,  and  for 
Smith  to  agree  to  pay  the  money  when  he  had  funds.  It  was  a 
direction  to  pay  part  of  his  money  to  Herbert  for  a  past  valuable 
consideration.  It  was  his  own  property,  and  he  was  competent 
to  transfer  it,  and  actually  did  so.  The  money  was  fixed  in  the 
hands  of  Smith  the  moment  the  order  was  accepted  and  the  un- 
dertaking complete:  Yates  v.  Groves,  1  Ves.jr.  280. 

The  assignment  by  Tuthill  to  Smith  of  all  his  right  in  the 
estate,  cannot  affect  the  complainant's  claim.  It  was  made  in 
September,  1817,  which  was  long  after  the  date  of  the  mortgage, 
and  the  order  on  Smith,  and  the  agreement  J)y  Smith  to  pay  the 
money,  and  of  consequence  was  subject  to  it  as  a  prior  vested  right, 
which  no  subsequent  transaction  between  Tuthill  and  Smith 
could  defeat.  The  complainant  then  is  entitled  to  recover  the 
amount  of  his  claim  out  of  the  fund,  provided  there  be  a  suffi- 
ciency to  satisfy  it;  of  which  I  understand  there  is  no  doubt.  Let 
an  account  be  taken,  1.  Of  the  amount  due  the  complainant  for 
principal  and  interest :  2.  Of  the  amount  of  assets  received  by 
William  Tuthill  before  the  order  on  Smith,  and  also  the  amount 
received  by  him  since:  3.  Of  the  amount  received  by  Smith,  and 
the  money  still  outstanding,  and  what  proportion  of  the  same  is 
still  due  on  the  share  of  Tuthill. 

The  question  of  costs,  and  all  farther  equity  and  directions,  are 
reserved  until  the  coming  in  of  the  master's  report. 

CITED  in  Gest  v.  Flock,  1   Gr.  Ch.  114;    Scrrien  v.  Berricn,  3  Gr.  Ch.   39; 
Fluke  v.  Fluke,  I  C.  E.  Gr.  480 ;   Current  v.  Current,  3  Stockt,  188. 


148  CASES  IN  CHANCERY. 


Dutch  Church  at  Freehold  v.  Smock  et  al. 


THE  DUTCH  CHUKCH  AT  FREEHOLD  v.  SMOCK  ET  AL. 
BILL  AND  CROSS-BILL. 


H.  Smock,  by  his  will,  gives  to  his  wife  "the  sum  of  six  hundred  dollars,  to  be  at 
her  disposal  during  life."  To  his  four  daughters  he  gave  one  thousand  dol- 
lars each  :  for  the  payment  of  debts  and  legacies  authorized  a  sale  of  his  per- 
sonal property,  and  so  much  of  his  real  estate  as  might  be  necessary  :  devised 
the  residue  of  his  real  and  personal  estate  to  his  two  sons;  and  appointed 
his  two  sons  and  a  third  person  executors.  One  of  the  sons  conveyed  hia 
interest  in  the  land  to  the  other,  who  mortgaged  it,  and  suffered  a  judgment, 
on  which  the  equity  of  redemption  was  sold  by.  the  sheriff  to  a  stranger. 
The  personal  estate  proving  insufficient  to  pay  the  debts,  the  deficiency  was 
advanced  by  the  executors.  The  widow  died,  without  having  received  or 
disposed  of  her  legacy.  The  master  reported  the  legacy,  and  interest,  due, 
to  her  executor  ;  balances  due  on  the  legacies  to  two  of  the  daughters,  and 
the  amount  so  advanced  by  the  executors. 

By  this  bequest  the  widow  took  an  absolute  and  vested  interest  in  the  legacy  to 
her,  and  not  merely  a  life  estate  with  a  power  of  disposition  during  life. 
Her  not  having  received  or  disposed  of  it  in  her  life-time,  or  the  fact  that  it 
must  now  be  raised  out  of  the  real  estate  in  the  hands  of  a  purchaser,  does 
not  alter  the  nature  of  her  estate. 

"Where  an  estate  is  given  to  a  person  generally,  with  a  power  of  disposition,  it 
carries  a  fee.  The  only  exception  to  this  rule  is,  where  the  testator  gives,  to 
the  first  taker,  an  estate  for  life  only,  by  express  words,  and  annexes  to  it  a 
power  of  disposal ;  in  that  case  the  devisee  for  life  will  not  take  a  fee. 

Where  the  master,  not  supposing  it  referred  to  him,  expresses  no  opinion  on  a 
material  point;  if  either  party  have  farther  evidence,  and  desire  it,  a  farther 
reference  will  be  ordered. 

If  the  executor,  while  owner  of  the  land,  had  paid  the  deficiency  it  was  liable 
to  pay  to  satisfy  debts  and  legacies ;  it  would  have  been  considered  paid  in 
easement  of  the  land,  and  the  property  would  have  been  discharged. 

The  master  having  stated  the  executors'  accounts  jointly,  and  it  not  appearing 
by  which  of  them  (he  excess  of  the  debts,  &c.  over  the  personal  estate  was 
advanced,  a  farther  reference  ordered. 


The  original  bill  in  this  cause  was  filed  for  a  foreclosure  and 
sale  of  certain  mortgaged  premises,  in  the  county  of  Monmouth. 
The  mortgages  were  given  by  Garret  H.  Smock  and  wife,  and 
belonged  to  the  complainants.  After  the  execution  of  these  mort- 
gages, Garret  H.  Smock  confessed  a  judgment  in  favor  of  John 
"W.  Holmes  and  Gilbert  Van  Mater,  as  trustees  of  Micah  Clark, 
late  Micah  Polhemus.  Upon  this  judgment  an  execution  issued, 
and  the  mortgaged  premises  were  sold  by  virtue  of  that  execution, 
and  purchased  by  the  trustees  for  the  sum  of  five  dollars,  subject 


OCTOBER  TERM,  1830.  149 

Dutch  Church  at  Freehold  v.  Smock'et  al. 

to  all  legal  incurabrances.  It  appears  that  the  property  formerly 
belonged  to  Hendrick  Smock,  the  father  of  the  mortgagor,  whc 
died  in  1814,  leaving  a  last  will  and  testament.  In  this  last  will, 
he  orders  that  his  wife  Sarah  shall  have  certain  chattels  and  also 
certain  privileges,  therein  particularly  designated,  and  gave  her 
also  six  hundred  dollars,  to  be  at  her  disposal  during  life.  To  his 
daughters  Elizabeth,  Sarah,  Jane  and  Ann,  he  gave  one  thousand 
dollars  each,  to  be  paid  when  they  should  respectively  attain  the 
age  of  twenty-eight  years.  He  directed  his  debts  and  legacies  to 
be  paid  by  his  executors,  out  of  the  first  moneys  they  received ; 
authorized  a  sale  of  his  personal  property  for  their  payment,  and 
that  being  insufficient,  so  much  of  his  real  estate  at  Freehold  as 
might  be  necessary.  The  residue  of  his  real  and  personal  estate 
he  gave  to  his  two  sons,  Garret  H.  Smock  and  Hendrick  Smock. 
In  1819  Henry  conveyed  h'is  moiety  to  Garret.  At  the  time  of 
the  sheriff's  sale,  public  notice  was  given  by  the  executors  of 
Hendrick  Smock,  that  a  part  of  these  legacies  was  unpaid ;  and 
that  there  was  due  to  the  widow  on  her  legacy,  nine  hundred  and 
twenty  dollars  and  twenty-five  cents;  and  that  the  sum  of  two 
hundred  and  seventy-five  dollars  and  thirty-five  cents  was  due  to 
Jane,  and  four  hundred  and  sixty-nine  dollars  and  twenty-three 
cents  to  Ann,  as  the  balance  of  their  respective  legacies ;  and  also 
that  there  was  a  balance  due  to  the  executors,  for  monies  paid 
out  by  them  in  satisfaction  of  debts  and  legacies  over  and  above 
the  personalty.  All  these  were  claimed  to  be  liens  on  the  mort- 
gaged premises,  being  the  estate  in  Freehold  mentioned  in  the 
will.  The  complainants  admit  the  prior  lien  of  the  legacies,  and 
pray  a  sale  of  the  property  to  discharge  the  incumbrances  in  their 
order. 

The  answer  of  the  trustees  of  Micah  Clark,  whose  rights  are  the 
most  seriously  affected  by  these  claims,  questions  the  amount  due 
to  the  several  claimants  or  legatees  as  set  forth  in  the  bill,  prays  an 
account,  and  submits  whether  by  the  true  construction  of  the  will 
the  legacies  are  properly  liens  on  the  land. 

The  answer  of  the  executors  of  Hendrick  Smock  admits  the  facts 
as  charged  in  the  bill. 

The  trustees  of  Micah  Clark  hereupon  filed  their  cross-bill ;  in 
which  they  allege  that  the  legacy  to  Jane  was  paid  off  by  Garret 
H.  Smock  r  that  Ann  had  agreed  to  take,  and  had  actually  ta- 


150  CASES  IN  CHANCERY. 

Dutch  Church  at  Freehold  v.  Smock  et  al. 

ken,  Aaron  Smock  for  the  balance  of  the  legacy  bequeathed  to 
her :  that  the  widow  always  lived  with  Garret  and  was  supported 
by  him,  and  it  was  agreed  that  such  maintenance  and  the  property 
taken  by  her  from  the  inventory  according  to  the  directions  of  the 
will,  should  be  in  full  satisfaction  of  the  life  estate  and  interest  in 
the  six  hundred  dollars  given  by  her  husband  ;  that  the  widow 
had  lately  died,  leaving  Aaron  Smock  her  executor :  that  the  lega- 
tees trusted  to  the  personal  security  of  Garret,  but  finding  him  em- 
barrassed, they  now  colluded  with  him  to  protect  his  property  and 
injure  honest  purchasers.  They  pray  that  the  premises  may  be 
held  discharged  from  any  of  the  liens  set  up  against  them,  save  the 
mortgages. 

The  defendants  to  this  bill  deny  these  allegations;  and  insist 
that  the  widow  in  her  life-time  lived  only  part  of  the  time  with 
Garret,  and  that  she  fully  compensated  "him  for  any  extra  services 
rendered  :  that  for  a  number  of  years  she  voluntarily  receipted 
him  for  the  payment  of  the  interest  on  the  legacy  of  six  hundred 
dollars,  but  always  claimed  right  to  the  principal  sum  ;  and  they 
further  insist,  that  the  balances  due  are  charges  on  the  land,  and  to 
be  first  paid  and  satisfied. 

On  the  hearing  of  the  cause,  it  was  adjudged  that  the  lands 
were  charged  with  the  legacies  by  the  legal  construction  of  the 
will ;  and  by  a  decretal  order  of  the  term  of  July,  1829,  a  refer- 
ence to  a  master  was  ordered,  with  directions,  among  other  things, 
to  take  an  account  of  the  amounts  respectively  due  to  the  said  le- 
gatees, including  the  legacy  given  to  Sarah  Smock,  the  widow  of 
the  testator,  now  deceased  ;  and  of  the  personal  assets  of  the  said 
testator,  not  specifically  bequeathed  ;  and  to  ascertain  and  report 
whether  all  the  debts  of  the  testator  have  been  paid,  and  what 
amount,  if  any,  is  coming  to  the  executors  of  Hendrick  Smock, 
deceased,  or  any  of  them,  for  moneys  overpaid  and  advanced  by 
them. 

The  master  reported,  that  at  the  date  of  his  report,  viz.  on 
the  12th  day  of  January,  1830,  there  was  due  to  Jane  Vander- 
veer,  late  Jane  Smock,  one  of  the'  legatees,  two  hundred  and 
forty-three  dollars  and  eighty-three  cents;  and  to  Ann  Conover, 
formerly  Ann  Smock,  another  legatee,  four  hundred  and  sixty-eight 
dollars  seventy-one  cents  ;  and  to  the  executors  of  Sarah  Smock,  ten 
hundred  and  fifty-two  dollars  and  ninety-four  cents,  if  the  chau- 


OCTOBER  TERM,  1830.  151 

Dutch  Church  at  Freehold  v.  Smock  et  al. 

cellor  shall  decree  that  the  same  is  to  be  paid  out  of  the  estate  ; 
and  also  that  there  was  due  to  the  executors  four  hundred  and 
8i'x  dollars  and  one  cent,  for  money  overpaid  and  advanced  by 
them. 

G.  Wood,  for  J..W.  Holmes.  As  to  the  sum  reported  due  on 
the  legacy  to  Jane  Vanderveer,  which  was  charged  on  the  land, 
we  set  up  in  the  cross-bill,  and  now  insist,  that  it  was  paid  ;  and 
refer  to  the  evidence  of  George  Clark.  The  master  has  allowed  the 
principal  and  interest  of  the  legacy  to  the  widow,  when,  in  fact, 
there  was  nothing  due.  The  principal  was  at  her  disposal  during 
life;  she  had  not  an  absolute  estate  in  it,  but  only  an  estate  for 
life.  Upon  her  death  it  did  not  pass  to  any  one,  except  under 
the  residuary  clause.  It  is  only  charged  on  the  real  estate  in  aid 
of  the  personal.  The  legacies  were  to  be  paid  out  of  the  personal 
estate  if  sufficient,  if  not  then  out  of  the  real  estate.  This  lega- 
cy to  the  widow  was  raised  out  of  the  land.  The  executor,  while 
owner  of  the  land,  satisfied  the  interest,  and  stood  ready  to  pay 
the  principal  if  she  had  required  it.  But  she  not  having  required 
it,  or  made  any  disposition  of  it  during  her  life,  it  must  return  to 
the  same  fund  out  of  which  it  was  raised  :  2  Mad.  107  ;  7  Ves. 
jr.  435.  The  object  of  turning  the  realty  into  personalty,  is  for 
the  particular  purpose  of  satisfying  this  legacy  ;  without  this  it 
would  not  have  been  changed  :  2  Had.  110.  It  will  not  now 
be  raised  out  of  the  realty,  to  be  paid  to  the  executors  of  the 
widow,  to  be  distributed  to  the  next  of  kin.  As  to  the  interest  of 
this  legacy,  it  is  paid.  She  was  supported  by  G.  Smock,  one  of 
the  executors  and  residuary  legatees,  during  her  life,  which  satis- 
fied the  interest.  The  master  was  to  take  the  account ;  he  should 
have  made  all  just  allowances,  and  ought  to  have  allowed  for 
this:  he  has  not  done  so,  but  submitted  it  to  the  court,  which  is 
incorrect.  The  master  has  also  allowed  the  excess,  paid  by  the 
executors  beyond  the  personal  estate,  to  satisfy  debts  and  legacies  ; 
which  is  improper.  G.  Smock,  the  executor  and  devisee,  has  no 
right  now  to  charge  this  on  the  land  in  the  hands  of  a  purchaser. 

Mr.  Frelinghuysen,  for  G.  H.  Srnock,  the  executor.  There 
is  no  reason  why  the  executors  should  lose  the  excess  which  they 
have  paid  to  satisfy  debts.  The  account  was  fairly  settled  in  the 


152  CASES  IX  CHANCERY. 

Dutch  Church  at  Freehold  v.  Smock  et  al. 

orphan's  court,  and  exhibits  the  sums  paid  and  amount  due  to  the 
executors  ;  and  it  appears  by  the  will,  that  if  the  personal  estate 
was  exhausted  the  real  estate  was  to  be  charged.  As  to  the 
legacy  to  Jane  Vanderveer,  G.  H.  Smock,  in  the  answer  and 
cross-bill,  has  sworn  that  it  was  due:  George  Clark's  evidence  to 
the  contrary,  is  only  of  loose  conversation  with  Smock  :  it  does 
not  amount  to  any  thing  conclusive ;  and  if  it  did,  he  is  interest- 
ed in  the  mattar.  The  will  gives  the  legacy  of  six  hundred  dol- 
lars to  the  widow  during  life,  to  be  at  her  disposition.  The  use 
is  declared  :  it  amounts  to  a  fee.  She  died  before  it  was  paid. 
The  trustees  of  Mrs.  Clark  bought  the  property  -with  full  notice 
of  this  claim.  If  it  be  not  an  absolute  bequest,  the  legacy,  unex- 
pended, will  go  to  the  residuary  legatee.  But  that  question  does 
not  come  up  here  ;  Mrs.  Clark's  trustees  have  no  concern  with  it. 
It  appears  that  G.  H.  Smock  paid  up  the  interest  to  April,  1819. 
It  is  true,  the  old  lady  since  lived  with  him ;  but  there  was  no 
contract  that  this  was  to  go  for  the  interest  she  was  entitle*!  to 
receive.  She  was  no  burthen  to  the  family,  and  her  executor  is 
now  entitled  to  receive  the  principal  of  the  legacy  with  the  in- 
terest from  1819,  reported  due. 

THE  CHANCELLOR.  To  the  report  of  the  master,  on  the 
several  matters  referred  to  him,  exceptions  have  been  taken  by 
the  trustees  of  Micah  Clark  ;  and  these  exceptions  are  now  to  be 
disposed  of. 

And  first,  as  to  the  balance  of  the  legacy  due  to  Jane  Vanderveer. 
It  is  alleged  by  the  exceptants  in  their  cross-bill,  that  this  legacy 
had  been  fully  paid  by  G.  H.  Smock  :  and  the  testimony  of  George 
Clark  is  referred  to,  to  prove  it.  George  Clark  is  the  husband  of 
Micah  Clark,  the  cestui  que  trust,  whose  rights  are  involved  in  this 
controversy  ;  and  he  has  acted  as  the  efficient  agent  of  the  trus- 
tees in  the  management  of  the  whole  concern.  Without  examin- 
ing the  question  of  his  competency,  I  think  the  evidence  as  it 
stands  does  not  establish  the  fact  of  the  payment.  Admitting  it 
to  be  true,  as  the  witness  states,  that  Garret  H.  Smock  told  him 
he  had  an  account  against  Joseph  Vanderveer  sufficient  to  meet 
the  balance  due  on  the  legacy  of  his  wife,  and  that  Smock  fur- 
ther told  him  there  was  nothing  due  to  Vanderveer  on  the  legacy, 
it  is  but  the  allegation  of  the  party  whose  interest  it  may  have 


OCTOBER  TERM,  1830. 


Dutch  Church  at  Freehold  v.  Smock  et  al. 


been  at  the  time  to  represent  the  legacy  as  paid.  It  is  not  assert- 
ed either  by  the  legatee  or  her  husband.  There  is  no  evidence 
to  show  any  acknowledgment  by  them,  that  the  balance  of  the 
legacy  was  satisfied.  Not  only  so,  but  they  both  expressly  deny 
it  in  their  answer  to  the  cross-bill. 

I  see  no  reason  to  disturb  this  part  of  the  master's  report. 

2d.  As  to  the  legacy  to  the  widow  Sarah  Smock,  now 
deceased. 

The  master  reports  the  amount  on  the  12th  January,  1830,  to 
be,  principal  six  hundred  dollars,  and  interest  four  hundred  and 
fifty-two  dollars  and  ninety-four  cents — computing  interest  from 
the  1st  of  April,  1819. 

Whether  this  is  an  absolute  legacy,  or  whether  the  principal  is 
after  the  death  of  the  legatee  to  revert  to  the  estate;  and  also  whe- 
ther, upon  the  evidence,  the  interest  is  to  be  considered  as  paid, 
were  matters  supposed  not  to  be  submitted  to  the  master,  and  on 
which  consequently,  he  made  no  report.  They  are  now  brought 
before  the  court  for  adjudication. 

With  regard  to  the  legacy,  the  words  of  the  testator  are,  "  I 
also  give  to  my  wife  the  sum  of  six  hundred  dollars,  to  be  at  her 
disposal  during  her  life."  It  appears  that  she  made  no  disposition 
of  it  during  her  life,  and  that  it  remained  in  the  hands  of  the 
executors.  I  am  of  opinion,  nevertheless,  that  the  widow  took 
in  it  an  absolute  and  vested  interest, ~and  not  merely  a  life  estate 
with  the  power  of  disposition  during  her  life. 

In  the  case  of  Robinson  v.  Dusgale,  2  Vernon,  181,  J.  S. 
devised  his  lands  to  A.  for  life;  remainder  to  B.  in  fee,  he  paying 
£400,  whereof  £200  to  be  at  the  disposal  of  his  wife,  in  and  by 
her  last  will  and  testament,  to  whom  she  shall  see  fit  to  give  the 
same.  The  wife  died  intestate,  making  of  course  no  disposition 
by  will.  The  plaintiff  took  out  letters  of  administration,  and 
brought  his  bill  to  have  the  £200.  And  it  was  insisted  for  the 
defendant  that  the  property  was  not  absolutely  vested  in  the  wife,  i 
but  that  she  had  only  a  power  to  dispose  of  it  by  will,  if  she 
thought  fit;  and.  that  not  having  done  so,  the  defendant  was  not 
chargeable  with  the  payment  of  it.  But  the  court  took  it,  that 
the  whole  interest  and  property  of  the  £200  vested  in  the  wife, 
and  that  she  had  power  to  dispose  of  it  as  she  thought  proper; 
t.ud  therefore  decreed  it  for  the  administrator.  This  case  is  ap- 


154  CASES  IN  CHANCERY. 

Dutch  Church  at  Freehold  v.  Smock  et  al. 

proved,  and  the  same  principle  adopted  by  Sir  Thomas  Sewell, 
the  master  of  the  rolls,  in  Maskelyne  v.  Maskelyne,  Amb.  750. 
So  in  Hixon  v.  Oliver,  13  Ves.  108.  The  testator  gave  to  his 
wife,  Faithy  Oliver,  £60  a  year  as  her  dowry,  to  be  paid  to  her 
quarterly  by  his  executor  from  the  day  of  his  death  ;  and  the  sum 
of  £300  to  be  disposed  as  she  thought  proper,  to  be  paid  after  her 
death  ;  and  also  his  leasehold  dwelling  house  and  furniture  during 
her  natural  life.  The  testator  died  soon  after  the  date  of  the 
will,  and  his  widow  survived  him  about  a  month  and  died  intes- 
tate, without  having  disposed  of  the  legacy  of  £300.  Her  ad- 
ministrator filed  a  bill  praying  payment  of  the  legacy.  The 
court  held  the  legacy  to  be  vested  and  absolute,  and  that  the  ad- 
ministrator was  entitled  to  recover,  upon  the  authority  of  the 
cases  already  cited.  Ld.  Eldon  thought  iu  that  case  that  the  widow 
could  have  disposed  of  the  legacy  as  she  thought  proper,  not  be- 
ing confined  to  a  disposition  by  will.  See  also  Ross  v.  Ross, 
1  JOG.  &  Walk.  154. 

The  same  principle  has  been  adopted  in  this  country.  In  Jack- 
son v.  Robbins,  16  Johns.  Rep,  588,  -Chancellor  Kent,  in  the 
court  of  errors  of  New  York,  says,  we  may  lay  it  down  as  an 
incontrovertible  rule,  that  where  an  estate  is  given  to  a  person 
generally  or  indefinitely,  with  a  power  of  disposition,  it  carries  a 
fee ;  and  cites  the  additional  authorities  of  Reid  v.  Shergold,  10 
Ves.  370;  Goodtitle  v.  Otway,  2  Wils.  6.  "The  only  excep- 
tion to  this  rule  is,  where  the  testator  gives  to  the  first  taker  an 
estate  for  life  only,  by  certain  and  express  words,  and  annexes  to 
it  a  power  of  disposal.  In  that  particular  and  special  case,  the 
devisee  for  life  will  not  take  an  estate  in  fee,  notwithstanding  the 
distinct  and  naked  gift  of  a  power  of  disposition  of  the  reversion. 
This  distinction  is  carefully  marked  and  settled  in  the  cases."  The 
same  conclusion  is  drawn  and  clearly  stated  in  1  Roper  on  Le- 
gacies, 430. 

In  the  present  case  there  was  a  power  of  disposal  during  life. 
This  power  extended  not  only  to  a  part,  but  to  the  whole  of  the 
legacy;  and  by  consequence,  the  power  was .  absolute.  The 
omission  to  dispose  of  it  in  her  life-time,  does  not  alter  the  nature 
of  the  estate;  nor  does  the  fact  of  its  not  having  been  paid  to 
the  widow,  or  that  it  must  now  be  raised  out  of  the  real  estate, 
in  any  degree  vary  the  case.  The  purchasers  had  full  notice  of 


OCTOBER  TERM,  1830.  155 

Dutch  Church  at  Freehold  v.  Smock  et  al. 

the  claim,  and  it  was  their  duty  to  inform  themselves  of  its  nature 
and  extent. 

As  to  the  interest  on  this  legacy,  it  is  admitted  that  the  widow 
was  entitled  to  it,  and  that  now  since  her  death  her  personal 
representatives  are  entitled  to  claim  it,  unless  it  has  been  paid  or 
in  some  way  settled  between  the  parties.  The  master  who  was 
directed  to  take  an  account  of  the  amount  due  the  legatees,  states 
that  there  is  due  to  the  executors  of  Sarah  Smock,  widow,  ten 
hundred  and  fifty-two  dollars  and  ninety-four  cents.  This  includes 
interest  from  April,  1819.  But  in  the  schedule  to  the  report,  it 
appears  that  the  master  supposes  it  is  not  submitted  to  him 
whether,  upon  the  evidence,  the  interest  is  to  be  considered  as 
paid ;  and  he  has,  of  course,  expressed  no  opinion  on  that  point. 
Although  this  is  a  proper  matter  for  investigation  before  a  master, 
I  feel  unwilling  to  direct  a  second  reference,  and  thereby  subject 
the  complainants  to  further  delay;  But  if  the  order  was  under- 
stood by  the  parties  as  it  was  by  the  master,  it  may  be  that  they 
or  one  of  them  may  wish  to  produce  evidence  to  ascertain  the  facts 
connected  with  this  charge.  The  opportunity  should  be  given  if 
desired;  and  consequently,  if  either  party  has  further  evidence 
to  offer,  and  wishes  an  opportunity  to  produce  it,  the  reference  will 
be  ordered. 

3d.  The  remaining  exception  is  to  the  allowance  of  four  hun- 
dred and  six  dollars  and  one  cent  to  the  executors  for  moneys  paid 
and  advanced  by  them  over  and  above  the  proceeds  of  the  personal 
estate. 

By  the  accounts  of  the  executors,  as  settled  in  the  orphans' 
court  upon  a  report  of  auditors,  there  appeared  to  be  a  balance 
*due  them  in  1827  of  three  hundred  and  six  dollars  and  seventy 
cents.  This,  together  with  the  costs  of  the  settlement  before  the 
auditors  and  the  orphans'  court,  and  the  interest  up  to  the  time 
of  the  report,  is  put  down  at  four  hundred  and  six  dollars  and 
one  cent.  The  master  says  there  is  no  evidence  to  satisfy  him 
that  this  amount  has  been  received  by  the  executors  out  of  the 
profits  of  the  estate  in  their  hands,  and  he  adds  it  to  the  amount  to 
be  paid  out  of  the  mortgaged  premises. 

I  am  not  satisfied  with  this  disposition  of  it;  and  yet  I  am  not 
prepared  to  say  it  is  altogether  incorrect.  If  the  personal  estate 
was  insufficient  to  satisfy  the  legacies  and  debts,  and  the  expenses 


158  CASES  IN  CHANCERY. 

Dntch  Church  at  Freehold  v.  Smock  et  al. 

of  settling  the  estate,  the  surplus  was  to  be  charged  on  these 
premises;  and  under  ordinary  circumstances  there  would  be  no. 
difficulty  iu  making  the  allowance  now  claimed.  But  in  this  case, 
Garret  H.  Smock,  one  of  the  executors  who  claims  this  allow- 
ance, was  at  the  time  these  moneys  were  paid  out,  the  owner  of 
these  very  lands  charged  with  the  deficiency.  If  he  had  been  the 
sole  executor,  and  had  while  owner  of  the  property  paid  the  defi- 
ciency which  it  was  liable  to  pay,  it  would  have  been  considered 
paid  in  easement  of  the  land,  and  the  property  would  have  been 
discharged.  If  the  lien  be  paid  off  by  the  owner  of  the  land,  it 
is  as  though  the  money  had  been  raised  by  sale.  The  difficulty 
consists  in  the  fact  that  there  are  three  executors,  and  that  the 
final  account  rendered  by  them  is  a  joint  and  not  a  separate  ac- 
count. Hence  it  is  impossible  to  say  whether  this  money  has 
been  advanced  by  all  the  executors  jointly,  or  only  by  some  or  one 
of  them.  On  looking  at  the  vouchers,  however,  it  seems  that  a 
very  large  portion  of  the  payments  has  been  made  by  Garret  • 
and  from  all  that  appears,  it  is  by  no  means  improbable  that  all 
the  balance  claimed,  would,  if  allowed,  be  put  into  his  pocket. 
This  would  be  unjust  as  against  the  purchasers.  The  notice 
given  at  the  sale  does  not  affect  the  question.  If  the  lien  was 
satisfied  and  paid,  the  notice  could  not  revive  it.  It  may  be, 
however,  that  the  whole  or  a  part  of  this  money  belongs  of  right 
to  the  other  executors;  that  the  assets  received  by  them  have  been 
less  than  their  disbursements  and  allowances  for  services  :  and  if 
so,  the  allowance  ought  to  be  made  them.  These  are  matters 
which  the  court  cannot  now  ascertain,  nor  can  it  be  done  without 
referring  it  to  a  master  to  take  and  state  the  accounts  of  the  exec- 
utors separately,  taking  the  account  settled  in  the  orphans'  court* 
as  the  basis.  The  report  should  state  the  amount  of  assets  re- 
ceived, and  the  amount  of  disbursements  made,  by  each  separately, 
together  with  the  proportion  of  commissions  proper  to  be  allowed 
each  one,  on  the  principles  applicable  to  such  cases.  I  shall  ac- 
cordingly refer  it  to  the  master  to  take  the  necessary  account,  with 
leave  to  examine  the  executors  upon  oath  touching  the  same;  re- 
serving all  further  directions  until  the  coming  in  of  the  report. 


OCTOBER  TERM,  1830.  157 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

THE  SOCIETY  FOB  ESTABLISHING  USEFUL  MANUFACTURES  ET 

AL.  v.  THE  MOKRIS  CANAL  AND  BANKING  COMPANY. 
\  

The  court  of  Chancery  is  not  the  proper  tribunal  for  calling  in  question  the  rights 
of  a  corporation,  as  such,  for  the  purpose  of  declaring  its  franchises  forfeited 
and  lost. 

The  "  Society  for  establishing  useful  Manufactures,"  owning  the  lands  on  both 
sides  of  the  Passaic  river  at  Paterson,  the  seat  of  the  manufactories,  where 
the  tide  does  not  ebb  and  flow  and  the  stream  is  not  navigable,  as  the  ripa- 
rian proprietors,  are  entitled  to  the  use  of  the  stream.  They  have  in  it  a 
property,  growing  out  of  the  ownership  of  the  soil,  as  sacredly  regarded  by 
the  law  as  the  right  of  soil  itself;  and  a  right  to  enjoy  it  without  diminution 
or  alteration. 

The  right  is  not  confined  to  the  use  of  so  much  water  as  may  be  necessary  for 
their  present  purposes.  They  have  appropriated  to  themselves  the  use  of 
the  stream,  and  have  a  right  to  take  out  the  whole  of  it  for  the  purposes  of 
their  manufactories ;  provided  it  is,  after  being  used,  again  restored  to  the 
bed  of  the  river  for  the  benefit  of  those  below ;  and  provided,  also,  that  no 
one  having  prior  rights  is  thereby  injured. 

Every  man  has  the  right  to  have  the  advantage  of  a  flow  of  water  on  his  own 
land,  without  diminution  or  alteration ;  but  an  adverse  right  may  exist, 
founded  ou  the  prior  occupation  of  another.  The  right  is  usufructuary;  a 
right  to  the  flow  of  water,  not  to  the  water  itself. 

The  Morris  Canal  Company,  by  using  the  bed  of  the  Rockaway  (a  branch  of 
the  Passaic)  as  part  of  iheir  canal,  introducing  into  it  the  waters  brought 
from  lake  Hopatcung  and  other  sources,  minglirfg  them  with  the  waters  of 
the  Rockaway;  and  on  leaving  it,  taking  out  water  to  supply  their  canal, 
which  is  not  again  returned  into  the  stream  before  it  passes  Paterson ;  do  not 
injure  the  rights  of  the  Society  for  establishing  useful  Manufactures  at  Pater- 
son, provided  they  take  out  no  more  water  than  they  bring  in,  and  the 
flow  of  water  at  Paterson  is  not  thereby  diminished. 

The  rights  of  the  Canal  Company  are  subject  to  the  prior  rights  of  the  Society, 
and  must  be  exercised  in  such  manner  as  that  the  Society  thereby  sustains 
no  injury. 

Semble.  That  the  legislature  have  not  power,  by  a  subsequent  act,  to  authorize  the 
taking  by  a  corporation,  of  streams  of  water  or  other  property,  previously 
appropriated  by  charter  to  the  use  of  another  corporation,  and  essential  to 
the  object  of  the  prior  grant. 

Past  injuries  are  in  themselves  no  ground  for  an  injunction:  the  province  of  the 
injunction  is,  not  to  afford  a  remedy  for  what  is  past,  but  to  prevent  future 
mischief.  If  the  injuries  were  continued,  or  the  right  to  continue  them  set 
up  and  persisted  in  by  the  defendants,  this  court  would,  if  the  fact;;  were  prop- 
erly established,  interfere  by  injunction  effectually  to  protect  the  complainant. 


158  CASES  IN  CHANCERY. 


Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

The  power  of  the  court  to  grant  injunctions  in  case  of  nuisance  is  unquestionable; 
but  the  exercise  of  the  power  must  always  rest  in  the  sound  discretion  of  the 
court,  to  be  governed  by  the  nature  of  the  case. 


The  controversy  in  this  case  is  between  two  incorporated  com- 
panies. The  Society  for  establishing  useful  Manufactures  was 
incorporated  by  an  act  of  the  legislature  in  the  year  1791,  with 
a  capital  stock  not  to  exceed  one  million  of  dollars,  "to  be  em- 
ployed in  manufacturing  or  making  all  such  commodities  or  arti- 
cles as  shall  not  be  prohibited  by  law,  and  to  that  end  in  pur- 
chasing such  lands,  tenements,  and  hereditaments,  and  erecting 
thereupon  such  buildings,  and  digging  and  establishing  such  ca- 
nals, and  doing  such  other  matters  or  things,  as  shall  be  needful 
'for  carrying  on  a  manufactory  or  manufactories  of  the  said  com- 
modities or  articles." 

The  Society  was  also  invested  with  power  "  to  acquire,  pur- 
chase, receive,  have,  hold  and  enjoy,  any  lands,  tenements,  he- 
reditaments, goods  and  chattels,  of  what  kind  or  quality  soever, 
to  an  amount  in  value  not  exceeding  four  millions  of  dollars,  and 
the  same  or  any  part  thereof  to  sell,  grant,  demise,  alien  and  dis- 
pose of." 

The  bill  states  that  in  1792  the  Society  went  into  operation1, 
with  a  capital  of  about  two  hundred  and  ninety-four  thousand 
dollars.  That  in  the  same  year  and  the  year  following  they  pur- 
chased about  seven  hundred  acres  of  land  at  and  near  the  great 
falls  of  the  Passaic  river,  in  the  counties  of  Essex  and  Bergen, 
and  selected  it  as  the  principal  seat  of  their  manufactories.  They 
constructed  a  canal  to  take  the  waters  of  the  Passaic  from  the  bed 
of  the  river  and  direct  them  through  their  lands,  for  the  purposes 
of  their  incorporation.  They  afterwards  constructed  a  dam  across  . 
the  river,  and  also  a  basin  or  reservoir,  from  which  the  water  was 
taken  into  the  canal.  They  also  purchased  the  bed  of  the  river. 
In  1807  they  constructed  a  second  canal,  below  the  one  above 
mentioned.  The  grounds  adjacent  to  the  canals  form  sites  for 
the  erection  of  manufactories ;  some  of  which  have  been  let  out 
to  individuals,  with  a  reservation  of  rent  to  the  Society.  Besides 
the  sites  now  occupied,  there  are  on  the  two  canals  now  erected 
water  privileges  not  sold  nor  leased,  amounting  to  twenty-nine 
mill  powers,  each  worth  to  the  Society  four  hundred  dollars  per 
annum,  or  in  fee  four  hundred  thousand  dollars.  The  lots  al- 


OCTOBER  TERM,  1830.  159 

Son.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

ready  appropriated  to  manufacturing  purposes  on  said  canals,  with 
the  buildings  and  machinery  thereon,  are  worth  eight  hundred 
thousand  dollars  and  upwards.  The  bill  goes  on  to  state  that 
other  improvements,  and  the  establishment  of  new  and  additional 
manufactories  are  contemplated,  under  the  confident  expectation 
that  the  State  of  New-Jersey  will  preserve  inviolate  its  pledged 
faith,  and  that  the  waters  of  the  Passaic  will  be  allowed  to  con- 
tinue to  flow  in  their  natural  channel  until  they  shall  be  appro- 
priated by  the  Society  to  the  furtherance  of  the  grand  objects  of 
their  incorporation.  Under  the  same  just  expectation  the  district 
has  been  incorporated,  and  the  town  of  Paterson  has  grown  up, 
and  now  contains  a  population  of  eight  thousand  inhabitants,  a  great 
portion  of  whom  are  directly  or  indirectly  concerned  in  and  bene- 
fitted  by  the  manufactories  there  established. 

The  bill  then  charges  that  in  1824  the  defendants  we're  incor- 
porated by  the  legislature  of  the  state,  with  power  to  construct  a 
canal  between  the  Passaic  and  Delaware  rivers,  and  with  a  capi- 
tal of  one  million  of  dollars.  That  books  of  subscription  were 
opened  and  upwards  of  seven  millions  of  dollars  subscribed,  but 
that  the  amount  of  actual  bona  fide  subscription  was  only  four 
hundred  thousand  dollars ;  and  that  some  shares  were  afterwards 
subscribed  and  taken.  That  the  Canal  Company  went  into  ope- 
ration, and  have  excavated  the  greater  part  of  the  bed  of  the 
canal.  They  have  constructed  works  and  machinery  in  the 
Rockaway  river  near  Dover,  and  thrown  a  dam  across  the  river 
for  the  purpose  of  leading  the  water  into  their  canal.  They  have 
erected  works  at  Powerville  for  the  same  purpose,  and  threatened 
that  they  will  at  any  time  hereafter,  as  they  may  have  occasion, 
turn  the  waters  of  the  Rockaway  at  both  those  places  into  their 
canal.  And  that  about  the  middle  of  July  fast,  also  on  the  "27th 
and  28th  July,  and  in  the  latter  part  of  August  and  fore  part 
of  September,  they  caused  large  quantities  ef  water  to  be  drawn 
out  of  the  Rockaway — sometimes  for  the  purpose  of  trying  their 
inclined  planes,  and  at  other  times  for  the  purpose  of  puddling 
their  canal — by  means  whereof  great,  sudden,  and  unusual  de- 
pression and  diminution  of  the  quantity  of  water  in  the  said  Pas- 
saic river  have  been  experienced  at  Paterson,  and  the  manufacto- 
ries there  prevented  from  performing  their  usual  operations,  and 
come  portion  of  the  machinery  has  actually  stopped  for  the  want 


160  CASES  IN  CHANCERY. 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

of  water.  That  the  Canal  Company  threaten  to  take  water  at 
other  places,  and  from  other  branches  of  the  Passaic  river.  That 
the  works  established  at  Paterson,  with  those  now  in  contempla- 
tion, will,  during  the  summer  months,  require  all  the  water  of 
the  river ;  and  that  if  the  Morris  Canal  and  Banking  Company- 
are  permitted  to  take»the  water  of  the  Passaic  for  their  canal,  they 
will  greatly  injure  the  complainants,  without  being  able  to  com- 
pensate for  the  injury.  The  bill  denies  that  the  water  to  be 
brought  by  the  Company  from  lake  Hopatcung  into  the  Rocka- 
way,  will  be  in  any  wise  equal  to  the  water  necessary  to  be  taken 
by  them  to  navigate  the  canal  to  Newark;  and  insist  that  even  if 
it  should  be  equal,  the  Company  have  no  right  to  commingle  the 
waters  of  the  different  streams,  or  permanently  to  divert  the  waters 
of  the  Rockaway,  and  substitute  therefor  the  waters  of  the 
Hopatcung,  thereby  involving  the  rights  of  the  parties  in  confu- 
sion and  difficulty.  That  the  Society  are  entitled  to  the  natural 
flow  of  the  river,  without  liability  to  the  dangers  that  may  result 
from  any  interference  on  the  part  of  the  Company.  The  bill  then 
prays  that  the  Canal  Company  may  be  wjoined  from  diverting  in 
any  wise  any  of  the  waters  of  the  Passaic  or  its  tributary  streams, 
and  that  an  account  may  be  taken  of  the  damages  already  sus- 
'tained. 

The  defendants'  answer  was  read  at  the  hearing,  and  also  a 
variety  of  affidavits  on  both  sides,  to  show  the  state  of  the  water 
in  the  Rockaway  and  Passaic  at  the  times  when  it  is  alleged  the 
greatest  depression  took  place,  and  to  make  manifest  the  injury 
occasioned  by  such  depression.  These  will  be  more  particularly 
adverted  to  hereafter  if  necessary.  It  is  sufficient  now  to  say,  that 
the  defendants,  in  their  answer,  insist  that  the  Society  for  estab- 
lishing useful  Manufactures  is  no  longer  an  existing  incorporation. 
That  many  years  ago  they  abandoned  the  establishment  they 
had  formed,  ami  all 'operations  connected  with  it,  and  thereby 
became  virtually  dissolved ;  and  that  the  manner  in  which  their 
operations  are  now  conducted,  and  the  mere  having  of  lots  and 
water  privileges,  is  not  in  accordance  with,  but  contrary  to  the 
spirit  of  the  charter,  and  is  of  itself  a  forfeiture  of  the  grant. 
They  say  further,  in  their  answer,  that  in  making  the  canal  it 
was  found  necessary  to  introduce  the  waters  of  the  Hopatcung 
lake  into  the  Rockaway ;  and  they  admit  that  they  have  caused 


OCTOBER  TERM,  1830.  161 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

to  be  erected  dams  across  the  Rockaway  at  Dover  and  Power- 
ville  for  the  purpose  of  turning  again  into  the  canal  such  of  the 
said  waters  as  may  be  necessary  to  supply  the  same.  They  admit 
that  such  of  the  waters  as  shall  be  taken  out  at  and  below  Pow- 
erville  will  not  be  returned  into  the  Passaic  till  after  it  shall  have 
passed  the  town  of  Paterson ;  but  insist,  nevertheless,  that  the 
water  passing  over  the  falls  at  Paterson  will  in  nowise  be  dimin- 
ished, inasmuch  as  the  waters  of  the  Hopatcung  lake  and  one  of 
the  head  branches  of  the  Raritan,  which  will  be  let  into  the  ca- 
nal, will  be  more  than  that  taken  out.  In  answer  to  the  charge 
of  taking  the  water,  and  the  injury  sustained  thereby,  in  July, 
August  and  September,  1829,  they  say  that  on  or  about  the  llth 
day  of  July  the  water  was  gradually  let  into  the  canal  from  the 
Rockaway,  for  the  purpose  of  trying  one  of  the  inclined  planes : 
the  experiment  was  made  on  the  15th  of  July,  and  the  water 
immediately  returned  into  the  Pompton  branch  ;  and  that  all  the 
water  afterwards  taken  in  July  was  immediately  discharged 
through  Cook's  creek  into  the  Rockaway.  That  during  the  lat- 
ter part  of  August  and  fore  part  of  September  no  water  whatever 
was  drawn  from  the  Rockaway  for  the  purposes  of  the  canal. 
And  they  expressly  deny  that  any  diminution  of  water  was  ex- 
perienced or  existed  at  Paterson  in  consequence  of  their  experi- 
ments; and  allege  that  if  any  scarcity  was  feU  it  must  have  been 
owing  to  a  defect  in  the  Society's  dam  or  some  other  cause. 

Mr.  Wood,  for  the  complainants.  The  objects  of  the  bill  are 
to  obtain  an  injunction  to  restrain  "The  Morris  Canal  and  Bank- 
ing Company  "from  diverting  the  waters  of  the  Rockaway  (a 
branch  of  the  Passaic)  from  the  works  of  "  The  Society  for  es- 
tablishing useful  Manufactures,"  at  Paterson :  and  satisfaction  for 
damages  already  sustained.  The  Society  was  incorporated  in 
1791,  in  perpetuity,  with  ample  powers,  and  provision  against 
forfeiture  by  non-user.  They  selected  the  great  falls  of  the  Pas- 
saic as  the  principal  seat  of  their  manufactories,  bought  seven 
hundred  acres  of  land,  with  the  mill-seat  and  bed  of  the  river 
Passaic;  which  is  here  a  private  stream,  not  subject  to  the  jus 
publicum  of  navigable  waters,  and  capable  of  becoming  private 
property.  In  1792  they  constructed  their  first  canal  or  raceway ; 

L 


162  CASES  IN  CHANCERY. 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

in  1807  a  second,  and  in  1827  a  third  ;  affording  sites  for  manu- 
facturing establishments  capable  of  employing  all  the  waters  of 
the  river.  They  erected  a  manufactory  in  1792,  and  carried  it 
on  themselves  until  179d,  when  finding  it  unproductive,  they 
ceased  manufacturing,  changed  their  mode  of  operations, 
and  adopted  another  plan  of  effecting  the  object  of  their  in- 
corporation, by  leasing  out  water  power  to  individuals  for  ma- 
nufacturing purposes.  The  defendants  say  that  by  doing  this 
the  Society  have  forfeited  their  charter.  The  third  and  fifteenth 
sections  of  the  charter,  it  is  true,  contemplate  that  the  Society 
would  carry  on  manufactories  themselves :  they  are  authorized  to 
do  so,  but  there  is  nothing  imperative.  The  charter  also  con- 
templated their  operating  through  the  medium  of  lessees;  for 
there  is  power  expressly  given  them  to  demise  their  real  or  per- 
sonal estate,  under  which  they  have  acted  in  leasing  their  water 
power:  Rev.  L.  109.  The  means  are  immaterial,  so  that  the 
great  object  of  the  charter,  "  the  establishment  of  useful  manufac- 
tures," is  effected.  And  it  cannot  be  said  that,  because  they  have 
not  done  all  they  were  authorized  to  do,  they  have  forfeited  their 
charter :  Opin.  Ch.  Williamson,  The  Society  v.  The  Morris 
Canal,  pp.  18,  20.  There  is  likewise  a  provision  in  the  charter 
for  incorporating  a  district  around  the  principal  seat  of  the  Society, 
six  miles  square,  with  various  municipal  powers.  The  object  was- 
to  build  up  a  manufacturing  town ;  and  under  the  plan  adopted 
a  town  has  grown  up,  containing  eight  thousand  inhabitants,  which 
is  now  the  Manchester  of  the  United  States. 

The  first  inquiry  is,  what  right  have  the  complainants  to  the 
waters  of  the  Passaic?  They  own  the  land,  the  bed  of  the  river, 
and  the  canals :  have  appropriated  the  water  to  their  use,  and  en- 
joyed it,  thirty  years  before  the  Morris  Canal  and  Banking  Com- 
pany were  incorporated.  As  riparian  proprietors,  they  have  ac- 
quired a  title  to  the  water  without  any  diminution :  Ch.  Wil- 
liamson's Opin.  30.  They  also  have  a  charter  right,  under  the 
faith  of  the  State,  guaranteed  by  the  Constitution  of  the  United 
States.  And  this  right  is  equally  protected  in  the  hands  of  their 
alienees  or  lessees:  Bank  Case,  4  Wheat.  R.  316;  ib.  518, 
Dartmouth  College;  7  Cranch's  R.  161,.  The  Brotherton  In- 
dians. It  is  objected  that,  these  lands  were  purchased  under  a 
general  power  in  the  charter,  and  stand  on  the  same  footing  as- 


OCTOBER  TERM,  1830.  163 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

all  other 'lands  in  New-Jersey.  We  admit,  as  a  general  princi- 
ple, that  private  property,  land  and  water,  may  be  taken  for 
public  use,  making  just  compensation;  but  this  does  not  apply  to 
property  already  vested  in  a  company  under  a  charter.  There  is 
property  exempt  from  this  liability.  It  is  so,  when  the  taking  of 
the  property  would  impair  the  obligation  of  a  contract,  or  defeat 
the  purposes  of  a  former  grant.  The  legislature  could  not  au- 
thorize another  company  to  make  a  railroad  on  the  bed  of  a  turn- 
pike: this  would  be  a  violation  of  the  charter  of  the  turnpike 
company.  They  could  not  authorize  another  company  to  make 
a  canal,  and  take  the  waters  of  lake  Hopatcung,  making  com- 
pensation to  the  Morris  Canal  Company :  this  woXild  defeat  the 
object  of  their  incorporation.  Nor  could  the  State  authorize  the 
Morris  Canal  Company  to  take  the  waters  of  the  Passaic;  be- 
cause it  would  be  taking  away  the  very  means  by  which  the  So- 
ciety for  establishing  useful  Manufactures  are  to  carry  into  effect 
the  object  of  their  institution :  Opin.  Ch.  Williamson,  p.  23 
The  legislature  have  no  power,  by  subsequent  enactment,  to  in- 
terfere with  prior  grants;  and  general  words  in  a  subsequent 
grant,  are  not  to  be  construed  to  embrace  particular  streams,  pre- 
viously appropriated  by  charter,  and  essential  to  the  object  of  the 
prior  grant:  Angell  on  W.  C.  151;  17  Johns.  R.  195.  A  pri- 
vate corporation  or  franchise  is  property  :  it  cannot  be  taken  away 
on  pretence  that  it  is  wanted  for  great  puWic  purposes.  What 
may  not  be  done  directly,  cannot  be  done  indirectly.  If  the  le- 
gislature cannot  take  away  the  franchise,  neither  can  they  take 
away  the  property  which  is  essential  to  the  exercise  or  enjoyment, 
of  the  franchise.  We  have  thus  established  the  right  of  the  So- 
ciety to  the  use  of  the  waters  of  the  Passaic. 

The  Morris  Canal  and  Banking  Company  was  incorporated  in 
1824.  The  injury  of  which  we  complain,  is,  that  they  have 
taken  out  of  the  Rockaway,  and  other  tributaries  of  the  Passaic, 
as  much  water  as  they  wanted,  ad  libitum,  to  the  injury  of  the 
water  power  at  Paterson  ;  and  this  not  unavoidably,  for  they 
might  have  made  an  aqueduct  to  pass  over  the  Rockaway,  and 
avoided  an  intermixture  of  waters,  and  confusion  of  rights,  that 
may  occasion  interminable  controversy,  and  serious  injury  to  the 
rights  of  the  Manufacturing  Society  at  Paterson.  But  they  have 
purposely  locked  down  into  the  Rockaway  above  Dover,  made 


164  CASES  IN  CHANCERY. 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 


the  bed  of  the  river  a  part  of  their  canal ;  and  erected  a  dam  and 
works  there,  and  at  other  places,  to  enable  them  to  divert  as 
much  of  the  waters  of  the  Rockaway  as  occasion  may  require, 
to  fill  their  canal,  and  supply  it  to  the  tide  water  at  Newark.  By 
means  of  these  works  they  took  water  out  of  the  Rockaway  and 
turned  it  into  their  canal,  in  July,  August,  and  September,  1829. 
The  last  hearing  before  the  Chancellor  on  this  subject  was  in 
August,  1829.  There  is  much  contradictory  evidence,  but  on 
one  point  there  is  no  dispute:  that  on  the  13th  and  14th  of  July, 
1829,  they  did  take  water  from  the  Rockaway  at  Boonton,  and 
let  it  into  the  canal,  to  try  their  inclined  plane  at  Pompton,  and 
kept  it  in  for  some  time.  Here  was  an  actual  withdrawal  of  a 
large  quantity  of  water  from  this  branch  of  the  Passaic.  A  de- 
pression of  the  water  Jook  place,  and  was  complained  of,  at  Pa- 
terson  :  and  the  only  question  is,  what  occasioned  it?  the  dry 
season,  or  the  taking  of  the  water  out  of  the  Rockaway  ?  There 
was  nothing  in  the  season  to  account  for  it ;  and  the  burthen  of 
proof,  that  this  effect  did  not  proceed  from  so  obvious  a  cause  as 
the  withdrawal  of  the  water  from  the  Rockaway,  is  on  them. 
The  evidence  shows  affirmatively  that  there  was  such  a  depres- 
sion of  the  water  at  Paterson,  and  that  it  was  occasioned  by  the 
taking  of  the  water  into  the  canal.  When  the  depression  of  the 
water  took  place,  and  was  complained  of  at  Paterson,  the  dam 
was  examined,  and  found  to  be  in  good  order :  the  cause  of  the 
depression  was  sought  for,  and  it  was  ascertained  that  the  waters 
had  been  thus  diverted  into  the  canal.  There  was  also  a  depres- 
sion of  the  water  at  Paterson  on  the  27th  and  28th  July.  These 
depressions  were  sudden.  The  water  fell  ten  or  eleven  inches. 
At  these  two  periods,  the  diminution  of  water  was  experienced  to 
such  an  extent,  as  to  obstruct  the  working  of  the  mills  at  Pater- 
son. They  did  not  at  the  time  know  of  the  canal  being  filled ; 
but  on  examination  found  the  canal  filled  with  water  from  the 
Rockaway,  through  the  works  at  Boonton.  The  defendants  con- 
tend, that  the  depression  at  Paterson  was  occasioned  by  other 
causes  than  the  diversion  of  the  water  into  the  canal,  and  their 
witnesses  depose  that  at  certain  points  on  the  stream  there  was  no 
depression  of  the  water  observed.  The  fact  that  water  was  taken 
in  the  middle  of  July,  is  not  disputed  ;  yet  they  deny  that  it  was 
taken  the  latter  part  of  the  month.  A  number  of  witnesses 


OCTOBER  TERM,  1830.  165 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

prove  expressly,  that  they  saw  the  water  running  into  the  canal 
on  the  26th,  27th,  and  28th  July;  and  others,  that  at  that  period 
the  Rockaway  fell  suddenly,  and  the  water  was  so  low  at  Patersou 
that  the  mills  could  not  work.  These  facts  are  so  positively  testi- 
fied to,  that  it  is  difficult  to  doubt.  Yet  witnesses  on  the  part  of 
the  defendants,  swear  that  there  was  no  water  let  into  the  canal  at 
that  time.  This  negative  evidence  cannot  outweigh  the  positive 
evidence  on  this  point;  but  it  shows  how  easy  it  is  to  cast  a  shade 
of  doubt  over  a  plain  case,  and  how  readily  and  how  secretly  the 
waters  may  at  any  time  be  withdrawn,  by  means  of  the  works 
erected  by  the  Canal  Company,  the  manufactories  at  Paterson  ob- 
structed, and  Paterson  ruined. 

As  to  injury  since  the  last  hearing,  in  August,  1829: — The 
evidence  taken  since  the  filing  of  the  present  bill,  proves,  by  the 
concurrent  testimony  of  a  number  of  witnesses,  that  there  had  been 
water  in  the  canal  since  the  middle  of  July:  that  on  the  27th 
and  28th  of  August  there  were  three  feet  of  water  running  in 
the  canal ;  that  on  the  1 2th  September  the  water  of  the  Rocka- 
way was  again  turned  into  the  canal,  and  on  the  14th  the  water 
in  the  canal  was  three  feet  deep :  that  on  the  26th,  27th  and  28th 
of  August,  Crane's  mill  could  not  go:  that  the  water  in  the  Pas- 
saic  was  lower  than  it  had  been  in  twenty  years,  or  within  the 
memory  of  the  witnesses:  and  on  the  14th  September  it  was  the 
same  case;  the  waters  were  so  low  that  the*niills  could  not  go. 
Another  set  of  depositions  show,  very  conclusively,  that  the  ta- 
king out  of  the  water  to  fill  the  canal,  occasioned  the  depressions 
in  the  Rockaway  and  at  Paterson :  that  although  there  was  no 
drought,  yet  the  Passaic  at  Paterson  was  never  known  to  be  so 
low  as  the  last  season,  in  July,  August  and  September.  These 
three  sets  of  depositions,  establish  the  facts,  of  the  withdrawal  of 
the  water  by  the  canal  ;  the  depression  in  the  Rockaway  and 
Passaic;  and  the  diminution  of  the  water  power  at  Paterson,  in 
consequence  of  which  some  of  the  mills  were  stopped  and  others 
obliged  to  go  only  at  half  speed,  and  very  considerable  damage 
sustained  by  the  Society  and  the  manufacturers  at  Paterson. 
Some  of  these  depressions  took  place  on  Mondays,  and  it  is  at-' 
tempted  to  ascribe  them  to  the  retention  of  the  water  in  the  mill- 
dams  over  Sunday.  But  it  is  proved  that  the  usual  depression 
on  Mondays  from  that  cause,  was  from  one  and  a  half  to  two 


166  CASES  IN  CHANCERY. 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

inches,  which  would  fill  up  in  the  course  of  the  day ;  but  the  de- 
pression the  last  season  was  from  nine  to  eleven  inches,  and  not 
confined  to  Mondays  or  Tuesdays,  but  lasted  with  little  variation 
for  nine  weeks.  Besides  the  Rockaway,  several  other  tributaries 
of  the  Passaic  (Bear  brook,  Cook's  mill  stream,  and  Esler's  mill 
stream)  have  been  turned  into  the  canal,  by  means  of  works  and 
contrivances  erected  by  the  Canal  Company.  With  all  this  evi- 
dence before  us  we  are  gravely  told  that  the  Morris  Canal  Com- 
pany have  done  no  injury,  and  do  not  intend  to  do  any  injury  to 
the  manufacturers  at  Paterson,  and  this  court  ought  not  to  interfere 
to  protect  the  industry  and  future  interests  of  a  population  of  eight 
thousand  inhabitants,  and  prevent  the  invasion  and  final  subversion 
of  their  rights. 

It  is  said  by  the  Canal  Company  that  we  have  no  cause  of 
complaint  or  apprehension,  because,  although  they  have  con- 
structed works  and  contrivances  to  divert  water  from  the  Rocka- 
way, yet  they  intend  to  bring  into  the  Rockaway,  as  much  water 
from  lake  Hopatcung,  as  they  take  out  to  fill  the  canal.  The 
evidence  shows  that  they  have  not  yet  done  so.  They  have 
taken  out  water  and  brought  in  none ;  and  we  believe  they  will 
not  be  able  to  do  it  in  future:  that  lake  Hopatcung  will  not  be 
sufficient,  during  the  summer  months,  to  supply  the  canal  in 
both  directions,  to  Easton  and  to  Newark;  and  if  it  should,  that 
sufficient  water  could  not  be  introduced  through  the  feeder  to  sup- 
ply the  whole  extent  of  the  canal.  In  September  there  was  a  full 
discharge  of  water  into  the  feeder,  and  the  head  waters  of  the 
Raritan  were  turned  in  at  Drakeville,  yet  the  water  only  reached 
to  Dover.  What  is  the  answer  to  this?  They  give  us  figures; 
calculations  made  by  an  engineer  who  undertakes  to  gauge  the 
quantity  of  water  issuing  from  the  lake.  As  well  might  he  un- 
dertake to  measure  the  quantity  of  water  rushing  over  a  cataract, 
or  JEolus  to  measure  the  winds.  There  is  no  reliance  on  such  cal- 
culations, based  upon  theories  which  are  ever  contradicted  by 
facts.  The  engineer  of  the  Company  himself  admits,  that  to 
supply  the  canal,  they  must  resort  to  streams  supplied  by  leak- 
age from  it.  It  is  ten  miles  from  the  lake  to  the  Rockaway.  The 
leakage  of  the  first  five  will  fall  into  the  headwaters  of  the  Rari- 
tan. It  is  only  the  leakage  of  the  last  five  miles  th'at  would  fall 
into  the  Rockaway  if  it  could  reach  it.  But  in  conveying  water 


OCTOBER  TERM,  1830.  167 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

through  a  canal  over  a  porous  soil,  much*  of  it  will  sink  into  the 
fissures  of  the  earth  without  contributing  to  the  supply  of  any 
stream,  and  much  more  will  be  exhausted  by  evaporation.  If  the 
canal  was  filled  from  the  lake,  a  portion  only  of  this  water  could 
reach  the  Rockaway.  It  is  not  practicable  for  them  to  bring  as  much 
into  the  Rockaway  at  Dover,  as  they  must  necessarily  take  out 
to  fill  the  canal  again  and  supply  leakage  and  evaporation  to  the 
tide  water  at  Newark.  The  pretence  that  they  will  bring  in  as 
much  water  as  they  take  out,  is  a  fallacy,  having  no  foundation 
in  truth  or  the  nature  of  things,  urged  here  to  obscure  the  case, 
and  conceal  the  fact,  that  they  fall  into  the  Rockaway  at  Dover 
to  procure  an  additional  supply  of  water  to  support  the  canal  to 
Newark.  The  Company  are  involved  in  this  dilemma:  if  lake 
Hopatcung  will  afford  a  sufficient  supply  for  the  canal,  then  there 
is  no  necessity  of  taking  our  water  from  the  Rockaway — they 
can  pass  over  it  in  an  aqueduct :  if  the  lake  is  not  sufficient  to 
supply  the  canal  through  its  whole  extent,  then  they  must  ne- 
cessarily take  out  of  the  Rockaway  more  water  than  they  bring 
in.  By  injoining  them  from  taking  this  water,  you  confine  both 
parties  to  their  respective  rights,  and  no  one  will  be  injured. 
You  do  great  good  by  preventing  confusion  and  uncertainty. 

Upon  plain  legal  principles  we  are  entitled  to  the  flow  of  the 
whole  of  the  waters  that  in  their  natural  course  fall  into  the  Pas- 
saic,  without  diminution  or  alteration.  *A_  riparian  proprietor 
above  has  a  right  to  use  the  water,  but  he  cannot  divert  it  even 
on  .his  own  ground,  without  returning  it  to  the  natural  channel 
before  the  stream  leaves  his  land  :  Brearly  v.  Shaw,  6  East.  R. 
208  ;  Balaton  v.  Bensted,  1  Camp.  N.  P.  R.  463  ;  Merritt 
v.  Parker,  Coxe's  N.  J.  R.  463 ;  Waggoner  v.  Shaw,  4  Dal. 
R.  211;  Gardner  v.  Newburgh,  2  John  C.  C.  162,  164;  Ch. 
Williamson's  Opin.  and  cases  there  cited.  Yet  the  Canal  Com- 
pany contend  they  have  a  right  to  take  these  waters  into  the 
canal  and  carry  them  past  the  seat  of  our  manufactories  at  Pater- 
son.  They  say,  we  do  not  injure  you,  because  we  bring  into 
your  stream  as  much  as  we  take  out.  If  this  was  admitted,  it  is 
no  justification,  for  we  are  entitled  to  the  flow  of  the  same  iden- 
tical stream,  and  not  to  other  water  they  may  choose  to  bring 
into  it.  We  deny  that  they  have  this  right  of  substitution.  The 
great  rule  of  property  is  based  upon  identity  ;  it  is  of  the  essence 


168  CASES  IN  CHANCERY. 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

of  property.  Although  a  right  to  water  is  not  like  a  right  to 
goods  and  chattels,  because  the  water  itself  is  transient ;  yet  the 
right  to  a  flow  of  the  waters  of  a  particular  stream,  is  like  the 
right  to  an  easement,  or  way  leading  to  land  :  a  man  has  the 
same  right  to  it  that  he'  has  to  the  property  to  which  it  leads,  and 
he  through  whose  land  it  passes  has  no  right  to  take  it  away  and 
give  another  in  place  of  it.  If  they  can  divert  part  of  our  stream, 
they  may  divert  the  whole,  and  give  us  another.  It  is  no  an- 
swer to  say  they  are  equal.  Suppose  the  sources  of  the  substi- 
tuted stream  should  fail,  would  it  then  be  no  injury  ?  The  Ca- 
nal Company  intend  to  take  water  from  the  Rockaway  at  Dover 
to  supply  the  canal  to  tide  water.  If  they  are  permitted  to  do 
this  for  twenty  years,  they  acquire  a  perfect  right.  If  after  that 
lake  Hopatcung  fails,  all  we  could  have  would  be  gone;  and 
having  thus  acquired  a  perfect  .right  to  maintain  their  dam  and 
works,  find  to  divert  our  water,  they  may  do  it  ever  after,  and  the 
injury  to  us  is  irremediable.  To  prevent  this,  we  seek  an  in- 
junction. 

The  law  abhors  an  intermixture  of  property,  and  a«  party  who 
attempts  to  break  up  the  lines  of  distinction  is  chargeable  with 
the  highest  amount  of  damages :  Hart  v.  Teneick,  2  John.  C. 
R.  108  ;  Armory  v.  Delamirie,  1  Stra.  505 ;  Lupton  v.  White, 
15  Fes.  435;  2  Ves.  and  £.  265;  Pringle  v.  Taylor,  2  Taunt. 
150.  He  who  intermixes  his  property  with  that  of  another,  so 
that  it  cannot  be  separated  or  the  quantity  of  each  ascertained, 
forfeits  what  he  brings  in.  If  there  is  uncertainty  in  this  case, 
the  Canal  Company  have  occasioned  it.  They  have  intermixed 
the  waters  for  the  purpose  of  getting  the  command  of  our  stream, 
that  on  pretence  of  bringing  in  water  they  might  take  out  what 
they  may  require.  Who  is  to  measure  it?  How  is  it  to  be  ascer- 
tained that  they  take  out  no  more  than  they  bring  in?  We  are 
at  the  mercy  of  the  Company,  their  agents,  boatmen,  or  stran- 
gers. They  may  withdraw  the  water  to  our  prejudice,  and  no 
one  be  found  to  say  who  did  it.  The  power  this  company  will 
have  of  taking  the  water  at  any  time,  hangs  like  a  calamity  over 
the  town  of  Paterson,  suppressing  its  enterprise  and  withering 
its  future  prospects.  The  injury  is  too  impalpable  to  be  redressed 
at  law.  Suppose  the  business  of  the  town  arrested  by  the  dimi- 
nution of  the  water  power,  the  poor  thrown  out  of  employment, 


OCTOERB  TERM,  1830.  169 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

contracts  broken  up,  credit  prostrated,  and  property  depreciated. 
These  matters  are  not  relievable  at  law  :  1  John.  C.  R.  611.  It  is 
a  case  that  can  only  be  redressed  in  a  court  of  equity,  and  presents 
proper  grounds  for  relief.  The  course  is  a  plain  one  ;  each  party 
should  be  confined  to  the  use  of  their  own  waters,  and  the  matter 
will  be  put  at  rest. 


Mr.  D.  B.  Ogaen,  for  the  defendants.  The  complainants 
say,  the  faith  of  the  State  is  pledged  to  support  their  pretensions. 
If  I  really  thought  so,  I  would  say  nothing  against  them.  It  is 
true,  the  charter  is  a  contract ;  on  that  ground  only  can  it  be 
brought  within  the  provision  of  the  Constitution  of  the  United 
States,  relative  to  the  power  of  the  States.  It  is  a  contract  be- 
tween the  State  on  the  one  part,  and  "  The  Society  for  estab- 
lishing useful  Manufactures"  on  the  other.  The  State  has  grant- 
ed this  charter  to  the  Society,  in  consideration  that  the  Society 
on  their  part  should  do  and  perform  certain  acts  deemed  benefi- 
cial to  the  State.  The  Society  must  show  that  they  have  per- 
formed their  part,  strictly,  before  they  can  require  fulfilment  on 
the  part  of  the  State,  or  claim  its  protection.  This  is  a  sound 
principle  of  law  and  morals,  and  applies  with  peculiar  force  to 
agreements  made  by  a  sovereign  State.  If  a  grant  be  made  by 
the  King,  or  Parliament,  upon  a  misrepresentation,  the  grant 
is  void.  The  same  doctrine  applies  to  States.  It  results,  that  if 
a  grant  be  procured  for  one  purpose,  and  it  is  used  for  another, 
the  grant  is  void :  it  cannot  be  so  used.  The  great  object  of 
the  State  in  granting  the  charter  to  the  Society,  was,  not  merely 
to  enable  them  to  hold  lands  in  perpetuity,  but  it  was,  that  they 
should  employ  their  capital  in  manufacturing.  All  the  privileges 
were  given  to  the  Society  on  this  condition  ;  and  the  condition 
being  broken,  the  grant  ceases.  The  facts  in  this  case  are,  that 
in  1792  the  Society  erected  a  mill,  and  commenced  manufactur- 
ing. They  discontinued  their  operations  in  1796.  From  this 
time  they  ceased  to  be  a  corporation.  If  they  had  begun  under 
the  charter  as  they  are  now  going  on,  it  would  have  been  a  fraud 
on  the  legislature,  and  their  charter  would  have  become  void.  It 
follows,  that  when  they  cease  to  manufacture  themselves,  their 
charter  is  at  an  end.  It  is  said  that  their  rights  are  saved  by  the 


170  CASES  IN  CHANCERY. 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

provision,  that  no  non  user  shall  work  a  forfeiture.  But  this  is 
not  a  question  of  non  user,  but,  whether  the  Society,  by  ceasing 
to  carry  on  manufactures  themselves,  have  not  surrendered  their 
charter  rights.  The  moment  the  end  of  the  institution  is  aban- 
doned, it  amounts  to  a  surrender  of  their  charter.  Slee  v.  Bloom, 
19  John.  R.  474.  A  surrender  is  an  act  in  pals:  2  John.  O. 
E.  226. 

We  are  told  the  charter  expressly  gives  the  Society  the  power 
of  leasing  real  estate.  But  if  their  charter  terminated  when  they 
passed  the  resolution  to  discontinue  manufacturing,  their  leases 
are  void.  What  lands  had  they  a  right  to  lease?  Only  those 
that  are  necessary  to  the  great  end  of  their  incorporation.  When 
the  end  is  abandoned,  the  means  must  go  with  it.  The  legisla- 
ture intended  to  be  liberal,  but  they  expected  good  faith.  The 
Society  say  in  their  bill,  that  they  are  carrying  on  manufactures. 
But  where,  and  how?  In  1814  they  subscribed  to  the  stock  of 
manufacturing  companies.  Then  from.  1796  to  1814  they  had 
no  concern  at  all  in  manufactures.  The  Society  has  no  right  at 
all  under  their  charter  to  be  concerned  in  the  stock  of  any  corpo- 
rate company.  If  they  have  not,  then  their  subscribing  for  stock 
is  a  violation  of  their  charter.  In  this  country,  corporations  have 
no  powers  but  those  that  are  expressly  given  by  the  charter,  or 
such  as  are  necessary  to  carry  the  charter  powers  into  effect.  This 
is  the  rule  in  New- York,  Pennsylvania,  and  Massachusetts.  The 
third  section  of  the  charter  prohibits  the  Society  from  dealing, 
trading,  &c.  They  have  a  right  to  invest  their  surplus  capital  in 
stock  of  the  United  States,  or  the  United  States  Bank,  but  no 
other  right  of  investment  whatever.  But  it  is  said  the  Society 
have  certainly  performed  part  of  what  they  were  bound  to  do; 
that  they  have  leased  mill  seats  for  manufacturing  purposes  ;  and 
that  is  enough  to  save  the  charter.  To  hold  and  demise  land  is 
part  of  the  charter  privileges,  but  no  part  of  the  charter  duties. 
The  argument  is,  if  they  perform  part  they  are  entitled  to  the 
whole.  Will  it  be  pretended  that  they  have  still  a  right  to  make 
a  lottery?  or  that  they  may  establish  any  manufactory,  however 
small,  in  any  part  of  the  state,  and  make  a  canal  from  thence 
to  Paterson  ?  The  argument  proves  too  much,  and  is  therefore 
bad. 


OCTOBER  TERM,  1830.  171 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

"We  insist  that  this  Society  never  had  a  legal  existence  as  a 
corporation.  The  charter,  section  sixth,  requires  that  their  original 
capital  stock  should  be  at  least  five  hundred  thousand  dollars. 
The  legislature  thought  they  were  securing  capital  to  that 
amount  for  manufacturing  purposes  in  New-Jersey.  That  was 
the  contract.  Yet  they  admit  that  the  whole  amount  of  their 
capital  stock,  when  they  commenced  operations,  was  only  two 
hundred  and  ninety-four  thousand  dollars.  In  this  they  broke 
the  contract :  they  never  had  a  lawful  right  to  go  on. 

This  bill  in  this  case  is  not  properly  verified.  There  is,  to  be 
sure,  the  corporate  seal,  and  signature  of  R.  L.  Colt  as  the  go- 
vernor of  the  Society ;  but  the  affidavits  annexed  relate  to  other 
matters,  and  do  not  prove  the  truth  of  the  material  facts  alleged 
in  the  bill. 

But  supposing  the  Society  to  have  all  the  corporate  rights  ori- 
ginally granted,  and  to  have  come  regularly  before  the  court, 
what  is  the  relief  prayed  for  by  the  bill?' — 1.  For  an  injunction. 
2.  For  damages.  I  lay  the  second  item  out  of  the  question,  be- 
cause this  is  a  mere  motion  for  an  injunction  to  operate  prospective- 
ly  ;  and  because  damages  are.  never  a  ground  of  relief  in  a  court 
of  equity :  they  are  the  subject  of  relief  at  law.  As  to  the  first 
item,  the  injury  last  summer  is  no  ground  for  an  injunction;  the 
only  ground  for  it  is,  to  prevent  future  damage.  Upon  the  affi- 
davits, I  remark  generally.  The  Boonton"  falls  are  on  the  Rock- 
away  river.  The  Passaic,  for  a  number  of  miles,  is  a  sluggish 
stream.  The  water  running  over  the  falls  at  Boonton  cauuot 
reach  Paterson  under  three  or  four  days.  If  the  whole  stream 
was  stopped  at  Boonton,  it  could  not  be  felt  at  Paterson  under 
that  time.  Yet  the  depression  is  complained  of  in  three  hours 
after  the  water  was  taken 'out.  The  Society's  engineer,  J.  L. 
Sullivan,  says,  if  the  Canal  Company  had  brought  in  as  much 
water  as  they  took  out,  the  depression  would  not  have  been  felt 
at  Paterson ; — as  if  it  had  occurred  after  the  water  from  lake 
Hopatcung  was  brought  into  the  Rockaway.  This  was  not  the 
case.  The  want  of  water  complained  of  was  in  July,  August, 
and  September;  and  no  water  from  the  lake  was  let  into  the 
Rockaway  until  late  in  September.  The  depression,  therefore, 
does  not  prove  that  we  do  not  bring  into  the  Rockaway  as  much 


172  CASES  IN  CHANCERY. 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

as  we  take  out.  From  September,  after  the  water  came  in  from 
the  lake,  the  canal  was  navigable  continually  to  Newark,  yet  no 
complaint  was  made.  Other  witnesses  speak  of  the  depression 
in  July,  August,  and  September;  and  some  of  them  add,  that  the 
drought  was  greater  the  29th  September  than  before,  and  there- 
fore the  depression  was  not  owing  to  the  drought.  Yet  the  same 
witnesses  say,  that  the  water  was  higher  after  the  14th  September 
than  before.  Where  did  the  additional  water  come  from  ?  Un- 
questionably from  the  great  pond  or  lake,  when  the  canal  was 
filled  to  navigate  it. to  Newark.  Does  not  this  prove  that  we  bring 
more  water  into  the  Rockaway  than  we  takeout? 

As  to  the  propriety  of  granting  the  injunction.  In  Roberts  v. 
Ambley,  2  John.  C.  JR.  202,  the  correct  rule  is  laid  down  by 
Chancellor  Kent.  There  is  no  doubt  of  the  power,  but  it  is  in  the 
discretion  of  the  court.  If  an  injunction  is  granted  in  this  case, 
what  will  be  the  effect.  You  will  put  a  stop  to  a  work  in  which 
the  State,  and  particularly  the  northern  .and  eastern  part,  have  a 
deep  interest.  To  this  work  the  faith  of  the  State  is  pledged.  It 
was  renewed  in  1827,  when  the  State  was  made  acquainted 
with  the  true  situation  of  the  Canal  Company.  In  I$30  the 
public  faith  was  again  renewed.  Under  that  faith  a  loan  of 
seven  hundred  and  fifty  thousand  dollars  has  been  effected.  Is 
this  faith  to  be  now  violated?  And  at  what  time  are  you  called 
on  to  do  this?  Why,  at  the  time  when  you  are  asking  foreign 
capital  hereto  carry  on  works  of  internal  improvement.  If  this 
step  is  taken,  there  will  be  an  end  of  public  improvements  in 
New  Jersey  for  ever.  But  considering  the  case  of  the  Morris  Ca- 
nal as  a  private  affair,  in  which  the  faith  of  the  State  is  not 
pledged,  how  stands  the  matter?  Injunctions  are  granted  on  the 
ground  that  the  party  fears  and  apprehends  an  injury.  But  two 
things  must  concur.  1.  The  danger  must  be  certain.  2.  The 
injury  must  be  irreparable.  Where  it  is  a  matter  of  doubt  or 
uncertainty,  or  where  the  party  can  have  an  adequate  remedy  at 
law,  this  court  will  not  interfere.  In  this  case,  it  is  doubtful 
if  the  injury  will  occur.  In  1823  the  legislature  appointed  com- 
missioners to  make  a  survey.  They  reported  that  the  great  pond 
(lake  Hopatcung)'  was  sufficient  to  supply  the  canal  with  water. 
This  is  important  testimony.  We  prove  the  same  thing  by  our 


OCTOBER  TERM,  1830.  17? 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 


engineer,  Beach,  and  others,  and  positively  by  Professor  Doug- 
lass. On  the  other  side,  the  witnesses  say,  the  water  of  the 
lake  is  not  sufficient.  This  leaves  it  a  question  of  doubt;  if  so, 
then  it  is  not  certain:  and  the  court  will  not  grant  an  injunc- 
tion. This  matter  can  hereafter  be  rendered  certain,  then  why 
not  wait  until  this  certainty  can  be  obtained.  And  if  the  injury 
happens,  it  is  not  irreparable :  the  remedy  is  plain.  Suppose  it 
should  be  found  that  the  water  is  diminished  at  Paterson  ;  this 
court  would  at  once  injoin  the  Company  from  letting  the  wa- 
ters of  the  Rockaway  into  the  canal,  and  the  injury  is  reme- 
died. 

But  we  are  told  that  no  matter  how  much  water  we  bring  into 
the  Rockaway,  we  have  uo  right  to  take  any  out.  This  brings 
us  to  a  discussion  of  the  rights  of  the  Society  as  to  the  water. 
What  are  they?  The  charter  gives  the  Society  no  express  right 
as  to  any  stream  of  water.  It  gives  them  the  right  to  purchase 
and  hold  lands.  They  have  the  right  to  water,  as  incidental,  but 
this  is  no  charter  right;  it  grows  out  of  the  authority  to  hold  land, 
and  their  right  as  owners  of  the  land  :  they  have  no  other  rights. 
A  corporation  is  a  fictitious  person,  nothing  else;  the  legislature 
give  to  this  fictitious  person  the  same  right  to  hold  lands  as  natural 
persons  have.  We  deny  that  they  have  any  other  rights,  in  land 
or  water,  than  other  persons  have.  I  do  not  stop  to  discuss  the 
question  whether  the  legislature  have,  or  liave  not,  the  right  to 
take  this  property  for  public  use.  It  is  not  necessary.  At  a  pro- 
per time  we  shall  show,  that  the  private  rights  of  a  corporation 
stand  on  the  same  footing  as  the  private  rights  of  individuals. 
The  Society  claim  a  property  in  the  water  itself;  there  can  be 
no  such  thing  as  property  in  water.  It  is  like  air,  transient:  there 
can  only  be  a  right  to  the  use  of  water.  None  of  the  cases  cited 
as  to  water,  use  the  term  "identity."  The  great  principle  is,  that 
I  have  a  right  to  use  the  water  passing  through  my  land,  so  that 
I  injure  none  else.  Sic  utere  tuo  ut  alienam  non  Icedas.  The 
question  then  is  not  as  to  identity  of  water,  but,  do  I  use  it  to  the 
injury  of  my  neighbor?  And  the  great  question  in  this  case  is, 
whether  the  water  is  taken  so  as  to  injure  the  Paterson  works. 
If  we  bring  in  as  much  water  as  we  take  out,  where  is  the  injury? 
On  this  subject  there  is,  to  say  the  least,  doubt.  The  Canal 


171  CASES  IN  CHAXCERY. 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

Company  can  have  no  desire  to  destroy  Paterson.  Why  should 
they  ?  It  is  important  to  them  that  Paterson  should  prosper.  If 
the  operations  of  the  Morris  Canal  Company  do  injure  the  Socie- 
ty, when  it  is  made  manifest,  we  must  make  an  agreement  with 
them,  or  abandon  our  works.  This  we  offer.  .  Ch.  Williamson, 
in  his  Op  in.  25,  has  decided  this  point.  Then  why  urge  this 
matter  again  ?  Why  harass  us,  with  this  third  application  for 
an  injunction,  and  in'the  face  of  former  decisions?  As  to  the  fact: 
we  bring  as  much  water  into  the  Rockaway,  as  is  necessary  to 
navigate  boats  to  that  river.  What  water  do  we  take  out  ?  Only 
enough  for  navigation.  But  they  say,  you  want  more,  for  leak- 
age and  evaporation  for  forty  miles;  that  will  absorb  a  great 
portion,  and  you  will  then  of  course  take  out  more  water  than 
you  bring  in.  This  does  not  follow.  If  we  take  out  .water  for 
other  purposes  than  mere  navigation,  we  must  take  it  out  with  a 
considerable  current.  Now,  how  do  they  know  that  we  will  not 
bring  it  in  with  a  current.  But  suppose  I  am  wrong,  and  that  we 
bring  in  just  enough  for  navigation  ;  and  take  out  of  the  Rocka- 
way to  supply  leakage  and  evaporation  to  Newark  ;  how  stands 
the  argument  ?  Why,  all  we  want  in  addition  to  what  we  bring 
in,  is  enough"  to  supply  leakage  and  evaporation.  As  to  the 
leakage,  it  all  goes  to  the  Passaic,  and  they  get  it  again.  And 
admitting  that  we  also  want  enough  for  evaporation  ;  we  have  a 
resource  sufficient  for  that.  In  the  former  bill,  as  well  as  the 
present,  it  is  stated  by  the  complainants,  that  the  great  induce- 
ment to  select  Paterson  as  the  place  for  the  location  of  their  works, 
was  the  advantage  of  having  the  Green  pond,  the  head  of  one  of 
the  branches  of  the  Passaic,  as  a  reservoir.  Now  what  rights 
would  the  owner  of  that  pond  have,  as  between  him  and  the 
Society  at  Paterson  ?  Would  he  not  have  a  right  to  dam  it,  so  as 
not  to  diminish  the  discharge  of  the  pond  in  time  of  drought? 
No  doubt  h«  would.  If  this  be  so ;  if  the  Green  pond  may  be 
made  a  great  reservoir^  and  the  owner  of  the  pond  may  use  it  in 
any  way,  not  diminishing  the  quantity  discharged  in  time  of 
<lrought;  then  the  Morris  Canal  Company,  who  are  now  the 
owners  of  this  pond,  and  have  the  rights  of  the  former  owner, 
can  dam  this  pond  and  use  the  water  in  like  manner.  Does  it 
not  then  follow,  that  the  additional  quantity  of  water  afforded  by 


OCTOBER  TERM,  1830.  175 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

this  reservoir,  will  be  sufficient  to  supply  the  leakage  and  evapora- 
tion of  the  canal  to  Newark  ?  Of  this  there  can  be  no  doubt.  The 
charter  of  the  Morris  Canal  Company  gives  them  the  right  to  dam 
the  Green  pond.  The  Society  have  only  the  right  to  the  ordinary 
discharge  of  the  pond.  If  that  can  be  increased,  the  right  is  ex- 
pressly given  to  the  Canal  Company  :  Ch.  Williamson's  Opin.  25, 
26.  I  look  upon  this  whole  matter  to  be  res  adjudicata.  We 
therefore  have  a  right  to  complain  of  this  proceeding,  and  hope  the 
motion  for  injunction  will  be  overruled. 

Mr.  Scott,  for  the  defendants.  In  an  injunction  bill,  which 
prays  for  the  high  prerogative  writ  of  the  court,  the  complainant 
must  set  out  a  distinct  title  to  the  thing,  the  injury  to  which  is  the 
subject  matter  of  complaint ;  and  it  must  be  properly  verified,  by 
the  oath  of  the  complainant  or  by  other  means.  In  cases  of  waste 
or  irreparable  mischief,  the  practice  is,  for  the  complainant  to  set 
out  the  title  precisely,  that  it  may  be  traversed.  Such  setting  out 
of  the  title  is  a  sine  qua  non :  1  Mad.  C.  216  ;  6  Ves.  R.  384. 
Now  what  do  the  complainants  set  out?  They  state,  that  they 
were  incorporated,  bought  lands,  mill  seat  and  bed  of  the  river  at 
Paterson,  &c.  And  how  is  the  bill  verified  ?  By  Mr.  Colt,  as 
the  governor  of  the  Society  ;  not  the  personal  actor  in  the  matters 
charged  in  the  bill,  but  the  creature  of  the  incorporation.  What 
does  his  verification  amount  to?  There  is  not  one  of  his  acts  set 
forth  in  the  bill,  nor  does  it  state  that  he  is  the  governor  of  the 
Society.  What  proof  then  is  there,  that  they  bought  property, 
etrea ins,  mill  seats,  &c.  ?  None.  They  produce  no  deeds:  Mr. 
Colt  has  not  sworn  to  it,  or  any  one  else.  The  other  affidavits 
annexed  to  it  prove  nothing.  Collet  and  Carrick  swear  only  as  to 
their 'own  acts.  There  is  no  affidavit  as  to  the  material  mattters, 
of  right,  of  invasion,  and  injury,  set  forth  in  the  bill.  This  court 
can  only  judge  on  evidence:  and  there  being  none,  of  any  right  iu- 
vaded,  there  can  be  no  relief. 

The  complainants  say  that  they  are  redus  in  curia;  that 
they  are  entitled  to  relief,  in  the  character  in  which  ijiey  com- 
plain ;  that  is,  in  their  corporate  capacity.  Where  is  their  char- 
ter? It  is  gone.  An  abandonment  of  the  objects  of  the  charter, 
is,  ipso  facto,  a  dissolution  of  the  corporation,  especially  as  to 


176  CASES  IN  CHANCERY. 

. — , —      . 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

third  persons.  They  have  no  right  to  the  means,  after  the  object  is 
abandoned.  If  there  has  been  such  abandonment,  the  Society  no 
longer  exists.  In  1796  there  was  an  actual  abandonment  of  the 
object  of  the  incorporation,  by  the  resolution  of  the  directors  to 
discontinue  manufacturing;  a  resolution  which  they  had  a  right  to 
pass,  under  the  last  section  of  the  charter.  Since  this  they  have 
not  been  known  as  a  manufacturing  institution.  They  say  they 
have  leased  water  power  for  manufacturing  purposes.  The  right 
to  demise  is  ancillary,  and  incident  to  the  right  to  hold  lands ;  it 
is  not  a  substantive  right.  They  have  no  right,  under  their  char- 
ter, of  dealing  in  water  powers,  as  such,  without  reference  to  the 
great  end  in  view :  it  is  not  the  object  for  which  they  were  incor- 
porated. Instead  of  going  on  with  the  object  in  view,  they  manu- 
facture by  proxy.  It  is  an  evasion.  This  non  user  is  evidence  of 
a  surrender  of  their  charter  privileges.  They  have  not  performed 
the  stipulations  on  their  part,  and  have  now  no  claim  to  the  faith 
or  protection  of  the  State.  The  charter  says,  that  non  user  of  the 
privileges  shall  not  be  a  forfeiture;  but  it  does  not  say,  that  non- 
performance  of  the  condition,  shall  not  be  a  forfeiture  of  the  grant. 
It  is  said  this  court  cannot  adjudge  it  to  be  a  forfeiture.  True,  this 
court  cannot  proceed  by  quo  warranto,  and  render  judgment  of  for- 
feiture. But  when  the  complainants  come  into  this  court,  as  a  cor- 
poration, they  must  show  that  they  have  legal  existence,  or  this 
court  will  refuse  relief.  In  the  case  in  19  John.  JK.  474,  there  had 
been  no  quo  warrantor  yet  it  was  there  considered  that  the  cor- 
poration had  no  existence. 

If  the  Society  have  £  right  to  come  into  this  court,  of  what  do 
they  complain?  An  invasion  of  their  chartered  rights.  V»rhat  is 
their  nature,  and  extent?  The  rights  of  natural  persons  are, 
security  of  person  and  property.  The  rights  of  a  corporation,  or 
artificial  person,  approximate  to  these,  but  cannot  transcend  them. 
The  rights  of  natural  persons  are  of  a  higher  order  than  those  of 
a  corporation.  As  natural  persons,  corporations  are  permitted  to 
acquire,  hold,  enjoy  and  transmit  property:  their  right  to  property 
stands  on  the  same  footing  as  the  right  of  natural  persons.  It 
is  said  that  the  waters  of  this  corporation  are  inviolable  ;  that 
they  canot  be  taken  for  public  use,  because  it  would  impair  the 
obligation  of  a  contract.  Can  it  be,  that  the  houses  and  lands 


OCTOBER  TERM,  1830.  177 

Soc.  far  establishing  Manufactures  v.  Morris  Canal  Company. 

of  a  citizen,  can  be  taken  for  canals,  highways,  &c.  and  yet  those  of 
a  corporation  be  favored  and  exempt?  Do  not  individuals  hold 
their  lands  and  waters  by  contract?  Private  property  may  be  taken 
for  public  use.  Is  not  the  property  of  a  corporation,  or  artificial 
person,  as  much  private  property  as  that  of  a  natural  person? 
And  is  not  the  faith  of  the  State  as  much  bound  to  protect  the 
property  of  the  one  as  the  other?  A  corporation  has  a  right  to 
hold  according  to  law,  and  in  no  other  way.  As  alienees,  they 
have  the  title  of  the  alienor,  and  no  more.  Does  the  grant  by 
the  State  to  a  corporation,  of  the  pcwer  to  purchase  and  hold  the 
property,  vary  the  case?  Have  not  nataral  persons  the  same 
power  under  the  general  law?  Are  lands  holden  of  the  State  in 
pure  allodium  inviolable;  if  not,  how  can  it  be  said  that  the 
waters  of  the  Passaic,  purchased  by  the  Society  under  the  authori- 
ty of  the  State,  are  inviolable?  I  refer  to  our  statute  regulating 
Tenures,  Rev.  L.  1 66 ;  Satterly  and  Mnyhew  v.  Hamilton  College, 
2  Peters  R.  — ;  Jerome  and  Ross,  7  John.  315.  The  charter  of 
the  Morris  Canal  gives  a  right  to  take  streams:  if  that  is  constitu- 
tional, there  is  an  end  of  this  question. 

But  the  complainants  claim  a  right  to  the  identical  water.  In 
6  East  R.  206,  Lord  Ellenborough,  in  speaking  of  the  right  to 
water,  uses  the  terms  "  without  diminution  or  alteration."  The 
one  means  quantity,  the  other  quality,  but  neither  means  identity. 
The  cases  adduced  to  prove  that  chattels  are*not  to  be  mingled, 
are  inapplicable:  because  water  is  not  property,  it  cannot  be  re- 
covered as  such.  As  to  the  right  of  diversion  without  diminish- 
ing the  quantity,  the  question  is  already  settled  by  the  opinion  of 
Ch.  Williamson.  The  complainants  say  we  have  lessened  the 
supply.  Our  answer  denies  it,  and  we  produce  the  depositions 
of  thirty-eight  witnesses  to  the  contrary.  The  evidence  is  before 
the  court,  and  it  is  unnecessary  to  recapitulate  it. 

To  entitle  the  complainants  to  an  injunction,  they  must  show 
well-grounded  apprehension  of  certain,  and  irremediable  injury. 
Admitting  the  right  of  the  Society  to  the  waters  of  the  Rockaway 
and  Passaic;  the  evidence  produced  by  the  defendants,  the  affi- 
davits of  Professor  Douglass,  of  Beach  and  Mason  the  engineers, 
show,  that  the  water  of  lake  Hopatcung  is  sufficient  for  all  the 
purposes  of  the  canal,  and  that  there  is  no  danger  of  injury  to 

M 


173  CASES  IN  CHANCERY. 


Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

the  Society.  These  affidavits  are  equal  to  those  of  J.  L.  Sullivan, 
Colt  and  others.  There  is,  to  say  the  least,  uncertainty ;  and 
the  power  of  granting  an  injunction  cannot  now  be  properly  ex- 
ercised. If  a  diminution  of  the  waters  of  the  Passaic,  from  the 
operations  of  the  canal,  should  occur,  it  is  not  irremediable.  The 
gates  may  be  hoisted  and  the  water  restored  :  this  court  can  set 
the  matter  right.  It  is  said  the  Society  are  in  danger,  as  the 
waters  may  be  diverted  by  any  one  opening  the  gates.  That  would 
be  an  abuse,  and  is  no  argument  against  the  proper  use,  of  the 
water  by  the  Canal  Company.  We  pray  that  the  injunction  may 
not  be  granted. 

Mr.  Southard,  in  reply.  It  is  important  to.  recollect  the  history 
of  this  case.  It  commenced  with  the  incorporation  of  the  Morris 
Canal.  The  impression  of  the  Society  then  was,  that  the  Canal 
Company  intended  to  sustain  themselves  without  touching  any 
waters  of  the  Passaic.  It  was  said,  that  the  lake  Hopatcung  was 
sufficient  to  supply  the  canal.  The  applicants  for  the  charter 
stated  that  they  meant  to  fill  it  from  that  source.  They  so  rep- 
resented to  the  public  and  to  the  legislature.  Such  was  the  im- 
pression of  the  legislature,  and  the  field  book  filed  by  the  Com- 
pany in  the  office  of  the  secretary  of  state  confirms  it.  No  mem- 
ber of  the  legislature  would  have  voted  for  the  bill,  had  they  sup- 
posed that  the  water  power  at  Paterson  was  to  be  destroyed  or 
injured.  The  canal  was  expected  to  terminate  at  tide  water  on 
the  Passaic.  After  the  charter  was  obtained  it  was  determined  to 
extend  it  to  Newark,  and  subsequently  an  extension  to  Jersey 
City  was  contemplated.  More  water  became  necessary,  and  then 
this  difficulty  commenced.  The  Company  located  their  canal, 
and  erected  works  and  contrivances  to  divert  the  wraters  of  the 
Rockaway,  and  carry  them  past  Paterson,  to  the  injury  of  the 
manufactories.  The  Society,  seeing  the  danger,  then  called  on 
the  late  chancellor  to  protect  them  by  injunction.  The  chancellor 
decided,  that  as  no  actual  injury  had  yet  been  sustained,  he  could 
not  grant  it.  Some  months  after,  having  by  that  time  suffered 
injury,  as  we  supposed,  we  applied  again  on  the  same  bill.  The 
chancellor  intimated  that  it  was  necessary  to  file  a  new  bill.  We 
have  accordingly  filed  a  new  bill,  and  produced  additional  proofs. 


OCTOBER  TERM,  1830.  179 


Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

This  is  the  whole  proceeding,  for  which  we  are  now  reproached 
with  having  made  a  third  application  for  an  injunction;  and  told 
that,  the  matter  is  res  adjudieata. 

It  is  said  the  verification  of  our  bill  is  defective.  It  is  under  the 
seal  of  the  corporation,  attested  by  R.  L.  Colt,  as  governor  of  the 
Society.  The  seal  alone  would  have  been  sufficient :  so  says 
Justice  Washington.  Beside  this,  the  affidavit  of  Mr.  Colt  is 
perfectly  full.  John  Colt  was  the  agent  of  the  Society ;  he  and 
three  others  swear  in  the  usual  form  :  the  others  are  lessees,  they 
could  swear  in  no  other  way.  If  this  verification  be  defective,  the 
court  will  order  it  corrected.  The  bill  is  of  double  aspect :  it 
prays  an  account  for  injury  done,  and  an  injunction  to  prevent 
future  waste.  I  shall  not  separate  these  matters ;  the  great  ques- 
tion is,  whether  the  Canal  Company  have  a  right  to  take  our 
water. 

As  to  the  facts  in  this  case:  Is  it  true  that  the  works  have  been 
erected,  and  the  injury  done?  I  admit,  that  there  is  some  con- 
tradiction in  the  evidence,  but  not  such  as  to  prevent  a  clear  con- 
clusion. It  is  proved  and  admitted,  that  at  Dover,  where  the 
canal  crosses  the  river  Rockaway,  the  Company  have  erected  a 
dam  and  locks.  They  have  here  taken  the  mastery  of  the 
whole  stream.  We  next  come  to  the  Bear  brook:  they  take  the 
whole  waters  of  that  stream.  At  Powerville  there  is  a  dam  by 
which  the  whole  river  can  at  any  moment  bo.  turned  into  the  ca- 
nal. Now  what  was  the  object  of  all  these  contrivances?  If  it 
was  only  to  take  out  as  much  water  as  they  bring  in,  would  not 
one  dam  have  been  sufficient?  It  is  admitted  and  proved  that  they 
had  brought  in  no  water  from  the  Hopatcung  until  after  the  injury 
complained  of  in  our  bill.  It  is  admitted  and  proved,  that  there 
has  been  water  let  into  the  canal  in  that  quarter  to  try  their  in- 
clined planes  and  for  other  purposes,  repeatedly,  in  July  and  Au- 
gust, as  well  as  in  September,  1829.  It  is  no  matter  whether  this 
was  done  by  the  Company,  or  a  stranger;  it  is  the  erection  of 
the  works,  of  which  the  Society  complain.  They  enabled  some 
one  to  do  the  injury.  It  is  against  these  works,  calculated  to 
divert  our  water,  so  that  it  will  not  be  returned  to  the  stream 
again  until  after  it  passes  Paterson,  that  the  power  of  this  court 
is  sought  to  be  directed. 


180  CASES  IN  CHANCERY 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

The  water  w.as  taken  at  three  several  times  in  large  quantities, 
and  at  other  times  more  or  less  every  day,  throughout  the  months 
of  July,  August,  and  September.  Was  it  taken  to  such  an  ex- 
tent as  to  affect  us  materially?  This  is  denied;  but  the  denial 
only  relates  to  the  month  of  July :  the  taking  of  water  in  August 
and  September  is  uncontradicted,  even  by  the  answer  of  the  de- 
fendants. The  defendants7  witnesses,  with  the  exception  of 
Smith,  speak  as  to  July  only.  The  Rockaway  forms  about  one 
third  part  of  the  river  Passaic.  What  portion  of  this  did  they 
take?  They  took  enough  to  fill  the  canal,  ten  miles  in  length 
and  three  feet  deep,  in  one  day.  It  must  have  taken  all  the  wa- 
ter of  the  Rockaway.  This  was  done  frequently,  to  try  their 
inclined  planes,  which  as  to  water  is  a  most  wasting  operation  ; 
and  yet  they  say  it  could  not  be  felt  at  Paterson.  The  defendants 
produce  thirty-eight  witnesses,  who,  as  they  say,  declare  there 
was  no  diminution  of  water.  With  the  exception  of  Smith,  and 
the  gentleman  at  the  Little  Falls,  there  is  not  one  who  had  his 
attention  particularly  directed  to  it.  *  They  did  not  observe  it. 
This  may  well  be.  Mr.  Beach  was  at  Paterson,  and  he  did  not 
see  it  or  hear  of  it.  At  the  Little  Falls,  and  at  the  freeholders1 
bridge,  those  who  were  at  work  there  took  no  particular  notice 
of  it.  And  what  does  all  this  negative  evidence  prove  ?  Nothing, 
in  opposition  to  the  affirmative  evidence  on  the  part  of  complain- 
ants. Our  chain  of  evidence  is  complete.  Smith  began  to  mark 
the  height  of  the  water  the  first  of  July:  he  has  given  us  the  re- 
sult. By  his  marks  we  find,  that  on  the  llth,  12th,  and  13th 
July,  there  was  an  actual  depression  of  from  twelve  to  fourteen 
inches :  on  the  27th  and  29th,  the  difference  was  nine  inches : 
on  the  6th  September,  seven  inches ;  and  on  the  13th  and  14th, 
there  was  one  day  six.  and  one  day  twenty-eight  inches.  Other 
witnesses  speak  of  the  depression  in  August  and  September: 
some  of  them  saw  the  children  playing  in  the  bed  of  the  river. 
Van  Duyn  kept  marks:  he  says  the  water  fell  twelve  inches. 
At  the  five  bridges  a  boat  was  left  dry  on  the  shore  in  the  bpace 
of  one  hour.  Duryea's  meadow  was  wet :  by  the  withdrawal 
of  the  water  it  became  dry ;  and  wet  again  when  the  water  re- 
turned. 

What  was  the   effect?    Kitchel's    mill    is    at    the    mouth    cf 


OCTOBER  TERM,  1830.  181 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

Cook's  brook :  he  (Kitchel)  says,  that  on  the  27th  and  28th 
August,  he  could  not  grind  for  want  of  water.  Crane's  mill  is 
similarly  situated  :  it  could  not  be  worked  on  three  several  occa- 
sions. They  did  not  know  why  it  was  so :  they  sought  for  the 
cause,  and  found  it  in  the  canal  works.  Post  says  the  streams 
were  lower  at  those  periods  than  he  ever  saw  them ;  Speer  says, 
six  inches  lower  ;  and  Collet  says,  the  water  was  fifteen  or  sixteen 
inches  lower  than  he  had  ever  known  it.  And  what  is  the  testi- 
mony in  relation  to  Paterson  ?  J.  Colt  says  there  was  a  diminu- 
tion of  the  water  there  of  ten  or  eleven  inches.  Rogers,  Godwin, 
and  others,  prove  that  some  of  the  mills  were  obliged  to  throw  off 
part  of  their  machinery;  and  one  mill  was  actually  stopped,  from 
the  28th  August  to  the  14th  September.  J.  L.  Sullivan  was  sent 
to  examine  the  cause  :  he  found  it,  not  at  the  dam  of  the  Society, 
which  had  been  raised  and  repaired  in  July,  but  at  the  works  of 
the  Canal  Company.  In  this,  Blake  sustains  Sullivan.  It  is 
said,  we  complain  of  the  depression  in  three  hours  after  the  water 
was  let  into  the  canal,  which  could  not  be.  This  is  not  so :  none 
of  our  witnesses  fix  it  at  less  than  twenty-four  hours.  In  conse- 
quence of  this  want  of  water,  contracts  were  broken,  and  leases 
violated.  That  the  Society  have  suffered,  is  now  no  longer  a  mat- 
ter of  doubt.  And  we  come  before  the  court  in  the  situation  in 
which  the  late  learned  chancellor  said  we  should  come. 

It  is  true,  that  during  the  period  above  aHuded  to,  in  which 
the  Canal  Company  were  continually  operating,  more  or  less, 
they  had  brought  no  water  into  the  Rockaway  from  the  Hopat- 
cung :  and  they  say  that,  if  the  water  of  the  Great  pond  had 
been  running  into  the  canal  in  July,  August,  and  September,  it 
would  have  helped  us.  It  might,  in  some  measure;  but  would  it 
have  protected  us  from  injury  ?  We  think  not.  We  believe  that 
the  Hopatcung  is  not  sufficient  to  supply  the  canal.  Who  has 
measured  it,  and  without  admeasurement  who  can  tell  ?  They 
give  us  calculations  made  by  Professors  Renwick  and  Douglass; 
between  their  estimates  there  is  a  difference  of  one  half  in  quan- 
tity :  yet  upon  such  calculations  you  are  asked  to  doubt,  and  leave 
our  rights  to  destruction. 

They  calculate,  too,  upon  the  whole  water  of  the  lake  •  as  if 


182  CASES  IN  CHANCERY. 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

they  had  a  right  to  take  the  whole  supply  of  that  reservoir  for  the 
use  of  the  canal.  That  lake  is  the  source  and  supply  of  the  Mus- 
conetcong  creek,  on  which  there  are  forty-five  mill  seats.  They 
have  forgotten  these  mills,  or  they  desire  to  use  the  head  waters  of 
the  Musconetcong  only  to  Dover,  on  the  eastern  section  of  the  canal, 
and  then  take  our  water  to  supply  them  to  Newark.  They  want  to 
break  us  down,  to  avoid  the  difficulty  with  the  mills  on  the  Mus- 
conetcong. 

They  say  they  will  take  out  just  as  much  water  as  they  bring 
in.  Is  there  any  evidence  that  they  will  take  out  no  more?  They 
will  empty  into  the  Rockaway  a  lock  full  at  the  passage  of  every 
boat,  and  take  out  a  canal  fall,  enough  to  float  their  boat  to  New- 
ark. Their  dam  commands  the  whole  stream;  who  is  to  prevent 
their  taking  out  more  than  they  bring  in  ? 

You  are  told,  that  if  you  injoin  now,  the  faith  of  the  State  will 
be  violated.  Not  so.  If  their  water  from  the  lake  is  sufficient, 
they  can  pass  over  the  Rockaway  in  an  aqueduct,  and  not  interfere 
with  our  water  :  there  is  then  no  necessity  of  taking  it.  But  if 
the  water  of  lake  Hopatcung  is  not  sufficient,  then  they  must 
necessarily  take  our  water,  and  injure  us,  and  the  question  is  set- 
tled. If  they  are  restricted  to  their  own  water  resources,  and:  they 
are  insufficient  to  sustain  them,  and  they  sink,  it  will  be  by  their 
own  folly  and  default,  in  deceiving  themselves,  the  public,  and  the 
legislature;  and  they  will  fall  justly. 

Having  shown  the  wrong  and  injury,  the  question  arises,  by 
what  authority  is  this  wrong  done  ?  They  answer,  the  charter : 
we  deny  it.  The  charter,  we  say,  contemplated  no  such  thing. 
The  commissioners  appointed  by  the  legislature,  reported,  that 
there  was  water  enough  in  the  lake  Hopatcung  to  supply  the  canal 
to  tide  water  on  the  Passaic.  The  small  streams  which  the 
commissioners  said  might  be  taken  to  increase  the  supply,  are, 
the  head  waters  of  the  Raritan,  and  the  tributaries  of  the  Mus- 
conetcong  and  the  Delaware.  They  were  studious  to  show  that 
the  head  waters  of  the  Passaic  were  not  to  be  interfered  with. 
Green  pond,  one  of  the  sources  of  the  Passaic,  is  not  mentioned 
in  the  communications  to  the  legislature  previous  to  the  passing  of 
the  law ;  but  it  is  found  in  the  law-  itself.  t  The  mentioning  it 
there,  proves  that  the  legislature  ^id  not  intend  that  any  other  of 


OCTOBER  TERM,  1830.  183 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

the  waters  of  the  Passaic  were  to  be  used  by  the  Company.  And 
all  they  are  entitled  to  of  this  pond  is,  only  the  advantage  of  it 
as  a  reservoir,  or  the  use  of  the  additional  water  that  may  be 
accumulated  there  iu  the  wet  season :  its  ordinary  flow  is  not  to 
be  interrupted. 

But  if  the  Canal  Company  were  authorized  by  their  charter 
to  take  the  waters  of  the  Passaic,  they  have  yet  acquired  no  right 
under  it.  By  the  sixth  section  of  the  charter  they  are  directed  to 
make  a  map  of  the  lands,  waters  and  streams  required  for  the 
use  of  the  canal,  and  file  it  in  the  secretary's  office,  with  an  affi- 
davit of  the  engineer  that  the  premises  are  necessaryj  and  not 
more  than  is  requisite  for  the  purposes  of  the  act.  After  doing 
this,  they  can  only  take  what  they  have  so  described.  We  have 
here  the  survey  from  the  secretary's  office  :  it  contains  nothing  to 
justify  a  pretence  that  they  are  to  take  any  water  of  the  Passaic 
or  its  tributaries.  They  do  not  swear  that  they  are  necessary  ;  if 
they  did,  it  would  be  giving  up  this  question.  They  mention  the 
passing  of  the  Rockaway  in  the  same  way  that  they  mention 
the  passing  of  other  streams.  Over  all  they  pass  in  aqueducts, 
except  the  Rockaway.  They  are  also  required  to  compromise 
and  settle  with  the  citizens  before  taking  their  property:  they 
have  not  done,  or  attempted  to  do  it  with  the  Society.  In  case 
of  a  failure  of  compromise,  they  should  have  resorted  to  the  tri- 
bunal appointed  by  the  act  itself,  the  commissioners.  As  to  this 
tribunal,  I  do  say,  that,  according  to  my  view  of  the  subject,  it  is 
unconstitutional.  It  is  taking  away  the  trial  by  jury.  I  refer 
to  Judge  Paterson's  opinion,  in  the  case  of  Van  Home's  Lessee 
v.  Dorrance,  2  Dall.  R.  104.  But  if  it  is  constitutional  to  take 
our  property  in  the  way  prescribed,  the  Company  must  first  do 
what  the  charter  requires.  They  must  appraise  it,  and  pay  us 
for  it,  and  that  in  money ;  they  cannot  make  us  take  water, 
brought  from  some  other  source,  for  our  compensation. 

I  have  looked  at  all  their  justifications,  and  think  the  Canal 
Company  cannot  find,  in  the  report  of  the  commissioners,  in  the 
act  of  incorporation,  nor  in  a  compliance  with  its  provisions,  any 
apology  for  the  acts  of  which  we  complain.  The  proceedings  of 
the  Company  are  an  abuse  of  their  corporate  powers,  and  there- 
fore a  ground  for  injunction.  They  assume  the  power  to  inter- 


184  CASES  IN  CHANCERY. 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

mix  their  rights  with  the  rights  of  others,  without  their  consent, 
and  to  their  prejudice.  Such  an  intermixture  is  the  foundation 
of  an  action  for  damages,  when  it  takes  place.  But  when  they 
say  they  will  continue  it,  without  end,  then  it  is  proper  for  the 
court  oY  chancery  to  interfere.  By  this  intermixture  they  create 
uncertainty  as  to  our  rights.  Who  is  to  measure  the  extent  of 
our  rights,  and  mete  them  out  to  us  ?  This  difficulty  must  occa- 
sion endless  litigation,  until  by  acquiescence  or  lapse  of  time  our 
rights  are  extinguished.  To  prevent  litigation  is  the  office  of  an 
injunction.  The  injury  of  which  we  complain  can  only  be  ar- 
rested by  the  powerful  arm  of  this  court. 

Our  opponents  say,  that  we  are  not  in  a  situation  to  complain, 
for  many  reasons.  1.  It  is  said  we  have  not  produced  title.  It  is 
never  required.  We  have  set  it  out  in  our  bill,  and  that  is  veri- 
fied, which  is  sufficient.  2.  It  is  said  we  were  never  legally  in- 
corporated, not  having  five  hundred  thousand  dollars  subscribed. 
The  legislature  incorporated  the  Society  on  the  subscription  of 
two  hundred  thousand  dollars,  previously  made :  but  it  is  stated 
in  the  bill  that  the  subscriptions  were  six  thousand  one  hundred 
and  twenty-two  shares,  upwards  of  six  hundred  thousand  dollars. 
3.  Again,  it  is  said  we  have  surrendered  our  charter  privileges, 
by  a  resolution  in  1796.  The  stockholders  never  made  such  a 
resolution.  They  alone  had  power  to  dissolve,  but  they  refused, 
and  instead  of  it  elected  a  new  board  of  directors.  4.  It  is  also 
said  we  have  surrendered  by  non  user  :  that  this  non  user  is  evi- 
dence of  a  surrender.  But  when  by  express  provision  of  the 
charter  (Rev.  L.  124)  non  user  cannot  create  a  forfeiture,  can 
it  be  evidence  of  a  forfeiture  ?  Lastly,  it  is  said  we  have  aban- 
doned the  object  of  our  incorporation,  and  therefore  our  rights 
are  gone.  The  object  was,  to  establish  manufactures :  this  we 
have  successfully  accomplished. 

The  legislature,  however,  do  not  regard  this  Society  as  dissol- 
ved. They  have  recognized  the  legal  existence  of  the  Society, 
time  after  time,  by  a  series  of  acts,  resolutions,  reports,  and  pro- 
ceedings (which  the  counsel  here  recapitulated)  from  1804  to 
1826.  In  1826  the  State  received  a  deed  of  conveyance  from 
this  same  corporation  :  could  it  then  be  extinct?  The  Society  can 
only  be  declared  non  existent  by  the  operation  of  a  quo  warrants 


OCTOBER  TERM,  1830.  185 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

There  is  no  such  power  in  the  court  of  chancery.  No  third  person 
can  come  here  and  say,  this  charter  has  been  violated,  and  is  there- 
fore .void.  Whether  the  Society  have  power  to  make  a  lottery  or 
not,  or  whether  they  have  power  to  make  canals  throughout  the 
^tate,  is  not  now  the  question  ;  if  it  was,  I  should  say  they  have 
the  same  power  on  these  subjects  as  they  ever  had. 

Having  shown,  as  I  trust,  the  existence  of  our  corporation,  I 
now  proceed  to  show  that  our  title  to  the  water  is  complete.  The 
object  of  the  Society  was,  to  establish  manufactures.  At  that  day, 
water  power  was  the  only  means  of  carrying  them  on.  Without 
this  they  could  not  succeed,  and  all  other  rights  would  be  good 
for  nothing.  The  Society  took  possession  of  the  waters  of  the 
Passaic.  I  do  riot  mean  the  identical  water ;  but  I  mean  the 
waters  of  this  identical  stream.  It  was  a  private  stream ;  they 
bought  it.  The  purchase  of  the  banks  would  have  been  suffi- 
cient ;  but  they  bought  the  bed  of  the  river,  and  acquired  a 
right  to  the  natural  flow  of  this  stream.  If  the  water  could  be 
withdrawn,  or  the  flow  of  the  stream  diverted  or  changed,  what 
did  they  purchase?  Nothing;  or  what  was  of  no  value.  But 
they  purchased  the  water  power  at  Paterson.  That  consists  of 
the  uninterrupted  flow  of  water  from  all  the  fountains  or  streams 
of  water  in  their  natural  course  emptying  into  the  Passaic:  com- 
bined with  the  descent  or  fall  of  water  at  Paterson,  which  consti- 
tutes water  power.  This  is  a  species  of  property  not  unknown  to 
the  law,  but  capable  of  ownership,  of  intrinsic  value,  and  like  all 
other  property  entitled  to  protection.  At  that  time  the  Society 
looked  to  Green  pond  as  one  of  the  tributaries  of  the  Passaic,  as 
appears  by  their  minutes  prior  to  their  location.  If  we  purchased 
the  water  power,  and  entered  upon  it,  and  used  it  twenty  years,  we 
have  as  good  a  title  as  any  grant  can  give  ;  a  title  that  no  consti- 
tutional power  can  wrest  from  us :  Campbell  v.  Smith,  3  Hals.  R. 
140.  If  we  had  no  charter  privileges,  our  rights  are  absolute.  This 
is  not  the  case  of  a  mere  purchase  of  lands,  in  allodium  or  other- 
wise ;  but  it  is  a  case  where  the  State,  by  granting  a  charter  to  the 
Society,  for  certain  special  purposes,  has  pledged  its  faith  to  pro- 
tect the  property  of  the  Society  lawfully  acquired,  and  essential  to 
the  purposes  of  their  incorporation.  To  this  end  we  pray  the  in- 
junction. 


186  CASES  IN  CHANCERY. 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

THE  CHANCELLOR.  In  the  consideration  of  this  case,  I  shall 
assume  that  both  corporations  have  legal  existence.  As  it  regards 
the  defendants,  no  objection  can  be  raised  against  their  existence 
as  a  body  corporate  by  these  complainants.  They  have  brought 
them  into  court  as  a  company;  the  direct  object  of  the  bill  is  to 
operate  upon  them  as  a  company  and  in  no  other  capacity,  and 
so  they  must  be  considered  by  the  court.  So,  on  the  other  hand, 
the  allegations  of  the  defendants,  that  the  Society  is  virtually 
dissolved  ;  that  they  are  acting  in  direct  opposition  to  the  spirit  of 
their  charter  ;  that  they  are  speculating  in  perfect  security  on  the 
very  extensive  privileges  granted  them,  without  incurring  any 
corresponding  risk,  or  embarking  any  of  their  capital  in  the 
manufacturing  and  making  of  such  commodities  as  are  mentioned 
in  the  act  of  incorporation,  and  therefore  their  charter  rights  are 
forfeited  and  gone,  cannot  avail  them  at  this  time,  or  before  this 
court.  The  case  of  Slee  v.  Bloom,  19  Johns.  474,  was  cited 
and  relied  on  by  the  defendants'  counsel,  to  show  that  a  corpora- 
tion might  be  considered  in  a  court  of  equity  as  having  forfeited 
or  surrendered  its  charter,  by  doing  or  suffering  acts  to  be  done 
which  destroy  the  end  and  object  for  which  it  was  instituted. 
That  case  was  decided  by  the  court  of  errors,  and  reversed  the 
decree  of  the  chancellor  as  found  in  5  Johns.  C.  R.  The 
learned  judge  was  of  opinion,  that  the  court  of  chancery  was  not 
the  proper  tribunal  for  calling  in  question  the  rights  of  a  corpo- 
ration, as  such,  for  the  purpose  of  declaring  its  franchises  for- 
feited and  lost ;  and  this,  as  a  gen£i*al  principle,  I  take  to  be  cor- 
rect. But  without  admitting  or  denying  the  authority  of  the  par- 
ticular case  cited,  it  is  enough  to  say  that  the  present  one  is  not 
within  it.  In  that  case  it  appeared,  among  other  things,  that 
the  stockholders  had  come  to  the  resolution  to  abandon  the  factory 
and  corporation  altogether.  No  such  fact  is  before  me  in  relation 
to  this  corporation.  The  charter  granted  to  the  Society  for  estab- 
lishing useful  Manufactures,  was  exceedingly  liberal.  It  was 
intended  to  promote  a  great  national  object,  and  well  calculated 
to  afford  extensive  protection  to  exertion  and  enterprize.  It  was 
created  in  perpetuity,  and  the  ordinary  and  natural  effect  of  non- 
user  was  expressly  provided  against.  How  far  the  risk  and  en- 
terprize of  the  Society  are  commensurate  with  the  privileges  and 


OCTOBER  TERM,  1830.  187 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

immunities  conferred  on  them ;  how  far  the  mode  of  operation 
lately  adopted  by  them  comports  with  the  spirit  and  intention  of 
the  .charter ;  and  whether  any  of  their  acts  or  omissions  may  le- 
gally be  construed  to  amount  to  a  surrender,  abandonment,  or  for- 
feiture of  the  charter,  are  questions  that  properly  belong,  as  I 
conceive,  to  another  tribunal.  They  are  matters  upon  which  it 
does  not  become  this  court  to  express  any  opinion. 

Considering,  then,  both  parties  as  properly  in  court,  I  shall 
inquire,  in  the  first  place,  what  are  the  rights  of  the  plaintiffs,  as 
exhibited  by  the  case  made. 

The  river  Passaic,  at  the  town  of  Paterson,  is  not  a  navigable 
stream.  The  tide  does  not  ebb  and  flow,  nor  is  the  stream  navi- 
gated by  boats  or  craft  of  any  kind.  The  Society,  at  the  place  se- 
lected as  the  seat  of  their  manufactories,  own  the  land  on  both  sides 
of  the  river,  and  have  had  the  possession  for  many  years.  They  are 
the  riparian  proprietors,  and  upon  plain  and  acknowledged  common 
law  principles  they  are  entitled  to  the  use  of  the  stream.  They 
have  in  it  a  property  growing  out  of  the  ownership  of  the  soil, 
which  is  ofttirnes  of  more  ralue  than  the  soil  itself,  and  at  all 
times  as  sacredly  regarded  by  the  law.  This  being  the  case,  they 
have  a  right  to  enjoy  it  without  diminution  or  alteration.  Lord 
Ellenborough,  in  the  case  of  Bcaly  v.  Shaw,  6  East.  208, 
says,  "The  general  rule  of  law,  as  applied  to  this  subject  is,  that 
independent  of  any  particular  enjoyment  used  to  be  had  by  ano- 
ther, every  man  has  a  right  to  have  the  advantage  of  a  flow  of 
water  in  his  own  land,  without  diminution  or  alteration  :  but  an 
adverse  right  may  exist,  founded  on  the  occupation  of  another." 
This  right,  at  all  times  valuable,  is  to  the  Society  vital.  Their 
hopes  and  expectations  not  only,  but  their  very  existence  are  de- 
pendent on  it.  The  right  is  not  confined  to  the  use  of  so  much 
water  as  may  be  necessary  for  their  present  purposes.  They  have 
appropriated  to  themselves  the  use  of  the  stream.  They  have  a 
right  to  take  out  the  whole  of  it  for  the  purpose  of  their  manu- 
factories, provided  it  is  again,  after  being  used,  restored  to  the 
bed  of  the  river  for  the  benefit  of  those  below ;  and  provided  also 
that  no  one  having  prior  rights  is  thereby  injured.  Such  I  take  to 
be  the  common  law  rights  of  the  Society,  independent  of  any 
additional  privileges  that  may  be  secured  to  them  by  their  charter. 


188  CASES  IN  CHANCERY. 

— • — a 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

What  they  may  be,  if  any  exists,  it  appears  to  me  unnecessary  novr 
to  inquire. 

I  propose  now  to  consider  the  rights  of  the  defendants,  and  how 
far,  if  at  all,  they  interfere  with  those  of  the  complainants;  and 
whether,  in  the  exercise  of  those  rights,  any  injury  has  been  done 
to  the  plaintiffs;  and  whether,  in  the  further  use  of  them,  the 
plaintiffs  will  be  so  certainly  and  permanently  injured,  as  to  justify 
the  interference  of  the  court  at  this  time  by  injunction. 

And  first,  as  to  the  rights  claimed  by  the  defendants.  I  do 
not  understand  them  as  claiming  a  right  to  the  ad  libitum  or 
unrestrained  use  of  the  waters  of  the  Passaic,  or  its  tributaries, 
subject  to  the  payment  of  a  compensation  or  damages  to  the  So- 
ciety for  establishing  useful  Manufactures.  If  such  claim  was  set 
up,  it  would  be  necessary  to  inquire  how  far  it  could  be  supported 
as  against  the  chartered  rights  of  the  Society.  But  I  consider 
that  question  not  properly  before  the  court.  They  claim,  un- 
der the  act  of  incorporation,  the  right  to  construct  a  navigable 
canal  from  the  Delaware  to  the  Passaic.  They  claim  the  use  of 
the  waters  of  lake  Hopatcung,  and  of  the  extra  water  of  Green 
pond.  They  claim  to  bring  the  water  from  the  Hopatcung  into 
the  Rockaway — to  make  use  of  that  river  as  a  part  of  the  canal, 
and  to  take  out  of  it  again  water  for  the  use  of  the  canal — not 
thereby  diminishing  the  ordinary  and  natural  flow  of  the  water  at 
the  great  falls  at  Paterson. 

It  does  not  follow,  that,  because  a  person  as  riparian  proprietor 
has  a  right  to  the  flow  of  a  stream,  and  to  use  it  for  the  purpose 
of  manufacturing,  or  any  other  purpose  requiring  the  use  of 
water,  that  therefore  no  other  proprietor  or  person  shall  be  at 
liberty  to  use  for  the  same  or  like  objects  the  water  above  him. 
This  would  be  contrary  to  natural  justice  and  the  reason  of  things. 
Each  one  has  a  right  to  the  use,  provided  that  in  the  exercise 
of  such  right  he  does  no  injury  to  his  neighbor :  2  Blac.  Com. 
403. 

Now  if  the  Morris  Canal  and  Banking  Company  make  such 
use  of  the  waters  of  the  Passaic,  or  any  of  its  tributary  branches, 
as  to  occasion  no  diminution  in  the  flow  of  the  stream  at  the 
place  where  it  is  used  by  the  complainants ;  and  if  in  such  use 
no  injury  whatever  is  done  to  the  complainants  ;  are  they  not  ex- 


OCTOBER  TERM,  1830.  189 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

ercising  an  ordinary  and  well  established  right?  Does  not  the 
same  privilege  that  is  accorded  to  others  belong  also  to  them  ?  It 
appears  to  me  unquestionable  that  the  defendants  have  such  right 
as  against  the  complainants,  subject  to  the  condition  already- 
stated. 

But  the  Morris  Canal  Company  claim  the  further  privilege  of 
introducing  into  the  Rockaway  the  waters  of  the  lake  Hopatcung, 
and  of  one  of  the  branches  of  the  Raritan — and  then  of  taking 
out  of  the  Rockaway  below  so  much  water  as  may  be  necessary 
for  the  purposes  of  their  canal ;  averring  that  the  waters  of  the 
stream  will  be  thereby  in  no  wise  diminished.  The  water  thus 
taken  out,  it  is  admitted,  is  not  to  be  returned  until  it  shall  have 
passed  the  great  falls  at  Paterson.  They  say  that  the  supply  of 
water  thus  brought  in,  together  with  the  extra  supply  which 
they  are  authorized  to  take  from  Green  pond,  will  in  times  of 
drought  afford  to  the  Society  a  more  copious  flow  than  they  would 
otherwise  have,  and  therefore  that  it.  will  be  a  benefit.  On  the 
other  hand,  it  is  contended  by  the  Society,  that  the  Canal  Com- 
pany have  no  authority  thus  to  commingle  different  streams  and 
different  rights ;  that  they  are  entitled  to  the  flow  of  the  identical 
stream  of  water,  not  only  without  diminution,  but  without 
alteration;  that  if  the  claims  of  the  Company  in  this  behalf 
are  sustained,  the  supply  afforded  by  these  substituted  streams 
may  in  time  diminish,  and  the  property  .and  immunities  of 
the  Company  be  jeoparded  or  ruined.  This  is  supposed  to 
present  a  question  of  novelty  and  importance.  It  certainly  is  not 
the  case  of  a  simple  diversion  of  the  stream  for  necessary  pur- 
poses, returning  it  again  to  its  natural  channel  when  those  pur- 
poses shall  have  been  answered;  but  would  seem  to  be  rather  a 
substitution  of  part  of  one  stream  for  part  of  another.  The  prin- 
ciple that  assigns  to  every  thing  capable  of  ownership  a  legal 
and  determinate  owner,  is  wise  and  salutary,  and  promotive  of 
the  great  ends  of  civil  society.  This  principle,  however,  can 
only  be  applied  to  streams  of  water  in  a  limited  sense.  There  is 
no  such  thing  as  actual  property  in  running  water.  It  is  transient 
in  its  nature,  and  must  be  permitted  to  flow  for  the  common  ben- 
efit. The  interest  is  rather  of  a  usufructuary  kind,  but  not  the 
less  absolute  or  vested  on  that  account.  To  say,  then,  that  a 


190  CASES  IN  CHANCERY. 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

person  entitled  to  the  flow  of  a  stream  of  water  through  his  land, 
is  entitled  to  the  flow  of  the  very  identical  substance  that  issued 
from  the  original  source,  is  an  assertion  of  right  not  easily  sus- 
tained. It  would  be  tantamount  to  the  ownership  of  the  particu- 
lar water  itself — which  cannot  be.  I  do  not  understand  Lord 
Ellenborough,  in  Bealy  v.  Shaw,  to  carry  the  doctrine  thus  far. 
His  principle  is,  that  every  man  has  a  right  to  the  advantages  of 
a  flow  of  water  in  his  own  land,  without  having  its  quantity 
diminished,  or  its  quality  altered,  by  the  operations  of  those  who 
might  be  above  him  on  the  same  stream.  It  is  not  pretended 
that  the  quality  of  the  water  to  be  let  in  from  the  lake  Hopatcung 
and  other  sources,  is  in  any  way  different  from  the  water  of  the 
Rockaway.  If  then  the  defendants  take  from  the  Rockaway  no 
greater  quantity  of  water  than  they  bring  in,  (and  they  claim  a 
.right  to  do  no  more,)  will  not  the  Society  enjoy  their  privilege 
without  diminution  or  alteration,  or  can  they  in  any  wise  be  in- 
jured ?  But,  while  the  right  thus  to  take  the  water  of  the  Rocka- 
way for  the  use  of  the  canal,  is  accorded  to  the  Company,  I  think 
it  is  easy  to  foresee  that  difficulties  may  arise  in  its  exercise. 
Whatever  these  difficulties  may  be,  and  whatever  may  be  the 
risk,  and  hazard,  and  loss  attending  them,  they  will  hare  been 
sought  by  the  defendants  themselves,  and  not  imposed  by  others. 
Their  rights,  whatever  they  may  be,  are  subject  to  the  prior 
rights  of  the  Society  for  establishing  useful  Manufactures,  and 
must  be  exercised  in  such  manner  as  that  the  Society  thereby 
sustains  no  injury.  And,  in  fact,  I  understand  this  principle  to 
be  conceded.  It  was  candidly  stated  in  the  argument  by  the 
counsel  for  the  Company,  that  if  in  their  future  operations  it  be- 
came manifest  that  the  Society  was  injured,  the  Company  must 
either  agree  with  them  for  the  use  of  the  water,  or  abandon  their 
work. 

The  next  inquiry  is,  whether  the  complainants  have  already 
been  injured  by  the  drawing  off  of  the  water,  and  whether  such 
injury  is  continued ;  and  if  not,  whether  the  apprehended  danger 
is  of  that  character  as  to  justify  the  interference  of  this  court  by 
injunction. 

And  first,  as  to  the  fact  of  the  injury,  and  its  continuance. 
The  bill  charges  that  the  Company,  about  the  middle  of  July, 


OCTOBER  TERM,  1830.  191 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

and  on  the  27th  and  28th  of  July,  and  in  the  latter  part  of  Au- 
gust and  fore  part  of  September,  caused  large  quantities  of  water 
to  be  drawn  out  of  the  Rockaway,  sometimes  for  the  purpose  of 
trying  their  inclined  planes,  and  at  other  times  for  the  purpose  of 
puddling  their  canal,  by  means  whereof  great,  sudden,  and  unu- 
sual diminution  and  depression  of  the  usual  quantity  of  water 
was  experienced  at  Paterson.  There  is  no  doubt,  from  the  evi- 
dence, that  water  was  drawn  from  the  Rockaway  for  the  purposes 
of  the  canal,  in  the  month  of  July,  as  charged  in  the  bill,  and 
again  let  into  the  river.  But  whether  the  stream,  in  consequence 
of  these  operations,  was  sensibly  diminished  at  the  great  falls, 
and  whether  in  consequence  of  it  any  injury  was  sustained  by 
the  complainants,  are  matters  not  so  clearly  established.  There 
is  much  contradiction  in  the  evidence,  and  if  it  were  necessary 
to  settle  the  facts  at  this  time,  I  should  have  strong  doubts  whether 
this  would  be  the  proper  tribunal  to  weigh  and  determine  upon 
the  mass  of  conflicting  testimony  that  has  been  presented  to  the 
court.  Whether  the  water  was  let  into  the  canal  at  the  times 
when  a  depression  of  water  is  charged  to  have  taken  place  at 
Paterson,  and  whether  such  depression  of  water,  if  it  actually 
took  place,  was  occasioned  by  the  operation  of  the  canal,  are  also 
matters  of  dispute — and  I  deem  it  unnecessary  to  look  into  the 
evidence  with  a  view-of  arriving  at  any  conclusion  in  relation  to 
them.  The  question  of  damages  is  not  now  tinder  consideration. 
If,  however,  injuries  were  sustained  by  the  complainants  at  the 
particular  times  charged,  those  past  injuries  are  in  themselves  no 
ground  for  an  injunction.  The  province  of  the  injunction  is  not 
to  afford  a  remedy  for  what  is  past,  but  to  prevent  future  mis- 
chief. The  effect  of  the  injunction  is  preventive.  If  the  injuries 
were  continued,  or  the  right  so  continue  them  set  up  and  persist- 
ed in,  this  court,  would,  if  the  facts  were  properly  established, 
interfere,  and  effectually  too,  for  the  protection  of  the  complain- 
ants. But  the  defendants  make  no  such  claim  or  pretence;  and 
it  is  observable,  that  between  the  fore  part  of  September  and  the 
filing  of  this  bill  in  January,  there  is  no  complaint  of  any  alleged 
riolation  of  the  rights  and  privileges  of  the  Society. 

It  appears  further  from  the  case  presented,  that  at  the  times 
when  the  water  was  let  into  the  canal,  as  complained  of  by  the 


192  CASES  IN  CHANCERY. 

Soc.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

Society,  there  was  no  water  brought  into  the  Rockaway  from  the 
lake,  and  that  the  water  was  let  into  a  section  of  the  canal,  not 
for  the  purpose  of  navigation,  but  of  making  some  experiments 
upon  the  works  of  the  canal ;  that  the  use  of  the  water  was 
temporary,  and  the  water  itself,  or  what  remained,  was  return- 
ed into  its  natural  channel.  It  does  not  appear  that  the  water  of 
the  Rockaway  will  in  future  be  withdrawn  for  these  temporary 
purposes,  preparatory  to  the  navigation  of  the  canal,  without  the 
water  being  brought  at  the  same  time  from  the  lake  Hopatcung 
into  the  Rockaway;  nor,  if  it  should,  that  the  water  of  the  river 
will  be  sensibly  diminished,  or  any  injury  sustained  by  the  com- 
plainants. Seeing  then  that  some  doubt,  to  say  the  least  of  it, 
rests  upon  the  allegation  of  the  complainants  in  regard  to  the 
alleged  injury  already  sustained;  seeing  there  is  no  certainty  that 
the  water  will  be  in  like  manner  again  abstracted  for  the  pur- 
poses of  experiments;  and  the  right  of  thus  abstracting  it  for  the 
purpose  of  navigation,  to  the  diminution  of  the  stream  or  the 
injury  of  the  complainants — or  ia  other  words,  without  bringing 
in  an  equal  supply,  being  disclaimed  by  the  defendants  ;  it  would 
be,  in  my  opinion,  an  indiscreet  and  injudicious  exercise  of  power 
in  this  court  to  arrest,  at  this  moment,  brevi  manu,  the  opera- 
tions of  the  Company.  In  the  prosecution  of  this  work  they 
have  expended  among  us  a  large  amount  of  money :  they  have 
lately  effected  a  loan,  to  relieve  themselves  from  embarrassment, 
and  enable  them  to  complete  their  canal.  It  is  a  work  in  which 
a  portion  of  the  community  is  deeply  interested,  and  which,  if 
completed  and  in  successful  operation,  may  be  of  great  benefit  to 
the  State.  To  grant  an  injunction  against  them  now,  in  the 
manner  and  to  the  extent  prayed  for,  would  •  be  at  once  to  pros- 
trate their  hopes,  and  might  result  in  an  injury  which  the  power 
of  this  court  could  never  repair. 

The  power  of  the  court  to  grant  injunctions  in  cases  of 
nuisance  will  not  be  questioned.  There  is  a  necessity  for  some 
preventive  remedy,  when  it  is  ascertained  that  great  or  imme- 
diate mischief,  or  permanent  injury,  is  about  to  be  done  to  pri- 
vate property ;  and  this  is  the  foundation  of  the  jurisdiction. 
But  the  exercise  of  the  power  must  always  rest  in  the  sound  dis- 
cretion of  the  court,  to  be  governed  by  the  nature  of  the  case. 


OCTOBER  TERM,  1830.  193 

See.  for  establishing  Manufactures  v.  Morris  Canal  Company. 

The  case  presented  is  peculiar ;  but  it  does  not  satisfy  rne  of  that 
pressing  necessity,  or  that  certainty  of  mischief,  which  would 
authorize  an  interference  in  a  matter  of  such  magnitude. 

The  Morris  Canal  Company  are  about  completing  their  canal. 
The  great  problem,  whether  their  means  of  supply  will  afford 
them  a  sufficient  quantity  of  water,  without  causing  any  dimi- 
nution of  the  water  in  the  Passaic  at  the  great  falls,  and  of  con- 
sequence injuring  the  complainants,  must  soon  be  solved.  Im- 
portant interests  are  involved  in  the  solution.  This  court  will 
afford  to  the  Company  its  protection,  so  far  as  may  be  legally 
done,  until  the  result  shall  be  ascertained.  But  the  defendants 
must  remember  that  they  proceed  upon  their  own  responsibility, 
and  at  their  peril.  If  there  be  any  hazard  or  any  danger,  it  is 
theirs  to  encounter  and  overcome  it.  The  rights  of  the  Society 
are  clear,  vested,  and  prior  rights ;  and  the  enjoyment  of  them 
in  their  full  extent  will  be  secured. 

The  injunction  is  refused. 

CITED  in  Dorenms  v.  Dutch  Reformed  Church,  2  Or.  Ch.  349 ;  Shiddi  v.  Arndt,  3 
Gr.  Ch.  245;  Soc.for  Estab.  Use/.  Manuf.  v.  Low,  2  C.  E.  Or,  28;  Carlisle  v. 
Cooper,  6  C.  E.  Gr.  579. 

N 


CASES    DECIDED 


IN  THE 


COURT   OF  CHANCERY 

OF   THE 

STATE    OF    NEW -JERSEY, 

JANUAEY  TERM,  1831. 


PETER  JACKSON  v.  T.  I.  DARCY,  E.  GOULD,  AND  P.  I. 
RYERSON. 


Where  A.  obtains  judgment  against  B.,  before  a  justice  of  the  peace,  without  an 
affidavit,  as  required  by  the  statute,  or  a  state  of  demand  filed  ;  upon  which 
execution  issues,  and  the  goods  of  B.  are  sold,  and  purchased  by  C.,  who  left 
them  with  the  defendant  for  a  few  days ;  in  which  time  H.,  another  creditor 
who  had  suits  depending,  also  obtains  judgment  and  execution,  and  by 
his  agent  and  a  constable  seizes  the  same  goods  in  the  possession  of  B. ; 
upon  which  C.,  the  former  purchaser,  commences  several  suits  against  H., 
his  agent,  and  the  constable ;  whereupon  H.  files  his  bill  in  this  court,  to  set 
aside  the  judgment  and  execution  of  A.  and  sale  to  C.  as  fraudulent,  and 
obtains  an  injunction  to  stay  proceedings  on  the  suits  by  C. ;  to  which  bill 
A.,  B.  and  C.  put  in  their  answer,  admitting  the  want  of  an  affidavit  ac- 
cording to  the  statute,  and  of  a  state  of  demand,  but  denying  any  fraud  or 
collusion,  and  showing  a  bona  fide  debt  and  full  consideration  for  the  judg- 
ment: the  charge  of  fraud  is  sufficiently  answered,  and  the  injunction  will 
be  dissolved. 

The  omission  to  file  a  state  of  demand,  might  authorize  the  reversal  of  the 
judgment  in  a  proper  tribunal,  but  is  no  ground  for  the  equitable  interfer- 
ence of  this  court. 

If  (he  want  of  an  affidavit  is  fatal  to  the  judgment,  and  renders  void  the  exe- 
cution and  sale,  so  that  no  title  was  conveyed  to  the  purchaser  as  against 
the  complainant,  it  must  be  by  force  of  the  statute ;  if  so,  they  arc  as  in- 
operative in  courts  of  law  as  in  a  court  of  equity,  and  the  decree  of  this  court 
is  not  necessary  to  make  manifest  the  nullity  of  these  proceeding*. 

As  to  continuing  the  injunction  on  the  ground  of  multiplicity  of  suits;  if  the 
proceedings  are  vexatious  or  malicious,  and  the  plaintiff  at  law  fails,  he  will 

194 


JANUARY  TERM,  1831.  195 

Jackson  v.  Darcy  et  al. 

be  bound  to  pay  costs  and  liable  to  an  action  for  a  malicious  prosecution.    It 
should  be  a  very  strong  case  to  induce  this  court  to  interfere. 

If  the  right  should  be  established  in  favor  of  the  defendant  at  law,  and  the  plain- 
tiff should  persist  in  any  oppressive  proceedings,  this  court  will  promptly 
interfere. 

Sembh.  That  the  court  of  chancery  will  not  interfere  to  restrain  proceedings  at 
law,  where  the  law  affords  an  adequate  remedy. 


The  question  in  this  case  arose  on  a  motion  made  on  the  part 
of  the  defendant,  after  answer  filed,  to  dissolve  an  injunction 
obtained  by  the  complainant,  on  filing  his  bill,  to  restrain  Darcy, 
one  of  the  defendants,  from  farther  prosecuting  certain  suits 
against  the  complainant  and  othersj  before  a  justice  of  the  peace. 
The  facts,  as  disclosed  on  the  hearing,  appear  in  the  opinion  of  the 
court. 

J.  P.  Jackson,  for  the  complainant. 
P.  DicJcerson,  for  the  defendants. 

THE  CHANCELLOR.  It  is  represented  in  this  case  that  Gould, 
being  debtor  to  Jackson  to  the  amount  of  one  hundred  and 
sixty  dollars,  confessed  a  fraudulent  judgment  to  Peter  A.  Ryer- 
son  for  one  hundred  dollars,  before  Abram  Ryerson,  esquire,  the 
brother  of  the  said  Peter.  That  there  wa^  no  consideration  for 
the  judgment,  no  state  of  demand  filed,  and  no  affidavit  made, 
according  to  the  requirements  of  the  law.  That  execution  was 
issued  at  the  request  of  Gould,  the  defendant,  for  the  purpose  of 
protecting  his  property ;  and  that  while  suits  were  pending  on 
the  claim  of  the  complainant,  the  property  was  fraudulently  and 
secretly  sold,  and  purchased  in  for  a  nominal  sum,  by  Timothy 
I.  Darcy,  one  of  the  defendants,  and  the  brother-in-law  of  Ry- 
erson the  plaintiff;  who  left  the  property  with  Gould,  and  never 
paid  the  constable  for  it.  That  afterwards,  the  complainant, 
by  his  agent,  one  Snow,  and  a  constable,  seized  the  property 
under  executions  issued  on  his  judgments.  That  thereupon 
Darcy  instituted  seven  suits  before  justices  of  the  peace,  in  the 
county  of  Morris — some  against  Snow  and  the  constable,  some 
against  the  constable,  and  some  against  the  constable  and  the 
complainant.  Some  of  them  were  instituted  by  warrant  issued 


196  OASES  IN  CHANCERY. 

Jackson  v.  Darcy  et  al. 

for  one  hundred  dollars,  and  for  which  bail  had  to  be  given  ; 
whereas  by  the  statements  of  demand  filed,  it  appeared  the  claims 
were  for  amounts  under  three  dollars.  In  two  of  them  the  dam- 
ages are  laid  at  fifty  dollars.  All  the  suits  are  in  trespass,  and 
relate  to  the  taking  of  the  goods  under  the  executions  of  Jackson. 

The  bill  prays  that  the  judgment,  so  far  as  respects  the  com- 
plainant, may  be  decreed  void  and  inoperative,  and  the  execu- 
tion and  sale  thereon  fraudulent  and  void ;  and  that  Darcy  may 
be  restrained  from  further  prosecuting  the  said  suits,  or  any  other 
for  the  same  cause,  until  answer,  or  the  further  order  of  the 
court. 

Answers  have  been  filed  by  the  defendants,  and  the  case  is  sub- 
mitted on  the  question  of  dissolving  the  injunction. 

In  regard  to  the  judgment — the  charge  of  fraud  is  sufficiently 
answered.  The  consideration  is  fully  shown.  It  was  founded  on 
a  note  of  hand,  assigned  over  to  P.  A.  Ryerson  by  Ava  Neal, 
and  is  stated  by  all  the  defendants  to  have  been  a  just  debt.  It 
is  denied  also,  that  there  was  any  collusion  in  regard  to  the  suing 
out  of  the  execution,  or  the  sale  of  the  property;  or  that  there 
was  any  agreement  or  secret  understanding  between  Gould  and 
Darcy,  about  leaving  the  property  in  the  possession  of  Gould. 
The  property  charged  to  be  worth  three  hundred  dollars,  sold  at 
the  sale,  which  is  alleged  to  have  been  an  open  one,  for  about 
one  hundred  and  eighty  or  one  hundred  and  ninety  dollars.  Dar- 
cy says  the  property  was  not  removed  immediately  because  it 
was  stormy,  and  that  the  next  day  after  the  sale  he  was  called 
away  from  home,  on  urgent  business,  which  detained  him  three 
or  four  days ;  and  before  he  returned  the  property  had  been  seized 
by  virtue  of  the  complainant's  execution.  It  is  admitted,  how- 
ever, that  there  was  no  statement  of  demand  filed  when  the 
judgment  was  confessed ;  and  that  there  was  no  affidavit  made 
and  filed,  as  required  by  the  act  of  assembly  in  cases  of  judg- 
ments confessed  before  justices  of  the  peace.  The  omission  to 
file  a  statement  of  demand,  might  authorize  the  reversal  of  the 
judgment  in  a  proper  tribunal,  but  is  no  ground  for  the  equitable 
interference  of  this  court;  especially  when  it  is  shown  that  there 
was  a  full  consideration  for  the  judgment.  If  the  want  of  an 
affidavit  is  fatal  to  the  judgment,  and  renders  void  the  execution 


t 


JANUARY  TERM,  1831.  197 

Jackson  v.  Darcy  et  al. 

and  sale,  so  that  no  title  was  conveyed  to  Darcy  as  against  this 
complainant,  as  is  contended  by  him,  it  must  be  by  force  of  the 
statute;  and  if  so,  the  decree  of  this  court  is  not  necessary  to  de- 
clare and  make  manifest  the  nullity  of  the  proceedings.  They  are 
quite  as  inoperative  in  the  courts  of  law  without  the  assistance  of  a 
court  of  equity  as  with  it ;  and  it  appears  to  me  there  is  not  only 
no  necessity,  but  no  propriety,  in  this  court  expressing  any  opinion 
on  the  proper  construction  of  the  act. 

So  far,  then,  as  regards  the  irregularity  or  alleged  fraud  in  the 
proceedings  complained  of  by  the  plaintiff,  up  to  the  time  of  the 
commencement  of  the  several  actions  by  Darcy  against  the  com- 
plainant and  his  agents,  I  see  no  ground  for  the  continued  inter- 
ference of  this  court. 

The  only  question  is,  whether  Darcy  shall  remain  injoined  from 
prosecuting  his  actions  against  Jackson,  Snow,  and  Waggoner  the 
constable. 

I  think  there  is  no  reason  to  doubt  that  Darcy  might  have 
ample  justice  done  him,  if  injured,  without  bringing  seven  actions, 
as  it  appears,  he  has  done;  and  I  think,  too,  that  in  the  prosecu- 
tion of  these  suits  an  improper  spirit  has  been  manifested.  But  it 
may  very  well  be,  that  more  than  one  or  two  suits  were  necessary, 
not  only  to  try  the  right,  but  to  obtain  the  proper  compensation,  if 
lie  was  entitled  to  recover.  How  far  he  may  have  exceeded  the 
bounds  of  strict  propriety  in  this  case,  I  am  not  able  to  determine. 
It  should  be  a  very  strong  case  to  induce  this  court  to  interfere  and 
settle  the  question. 

If  the  proceedings  are  vexatious  or  malicious,  and  the  plaintiff 
at  law  fails  in  his  actions,  he  will  be  bound  to  pay  the  legal  costs 
and  expenses,  and  will  besides  this  be  liable  to  an  action  or  ac- 
tions for  malicious  prosecutions :  Potts  v.  Imlay,  1  Southard, 
330. 

If  the  right  is  clearly  established  at  law  in  favor  of  the  defend- 
ant at  law,  and  the  plaintiff  should  persist  in  any  proceedings  that 
may  be  oppressive,  this  court  will  then  very  promptly  interpose. 
But  as  the  fraud  of  this  case  is  denied — it  being  the  foundation,  as 
I  take  it,  of  the  bill,  it  is  not  proper  that  the  injunction  should  be 
any  longer  continued. 

Injunction  dissolved. 


198  CASES  IN  CHANCERY. 

Meeker  v.  Marsh,  Ex'r,  &c. 

ELIZABETH  MEEKER  v.  JOSEPH  MARSH,  EXECUTOR  OF   ELIZA- 
BETH BUTLER. 


If  a  plea  of  matter  in  bar  of  the  complainant's  suit  be  allowed  by  the  court,  and 
is  afterwards  proved  to  be  true,  the  cause  is  at  an  end. 

A  plea  to  a  bill  against  an  executor,  for  account  and  payment  of  a  legacy,  "  that 
(on  such  a  day)  an  account  in  writing  was  made  out  and  stated,  between  the 
defendant,  as  executor,  &c.  and  the  complainant  as  legatee,  under  the  will  of 
the  testatrix,  and  upon  that  account  there  was  a  balance  still  due  complain- 
ant of  thirteen  dollars  and  six  cents,  which  was  then  and  there  paid  by  the 
defendant  to  the  complainant,  who  thereupon  gave  a  receipt  in  full,  (setting 
out  the  receipt,)  and  averring  that  she  read  the  receipt  herself,  or  it  was  truly 
read  to  her  by  the  defendant;  that  she  was  fully  satisfied  with  the  receipt,  and 
voluntarily  signed  it :'' — shows  with  sufficient  certainty  that  the  account 
stated  was  between  the  defendant  as  executor,  and  the  complainant  as  legatee-, 
&c. ;  but  is  defective,  because  all  these  allegations  may  be  true,  and  yet  th.1. 
complainant  mny  not  have  been  present  when  the  account  was  made  out  and 
stated,  and  may  never  have  seen,  and  examined  it.  These 'matters  are  material. 

The  defendant  allowed  to  amend  the  plea  in  this-  case  in  twenty  days,  or  in  de- 
fault thereof  the  plea  to  stand  for  answer,  with  liberty  to  except. 

The  answer  accompanying  the  plea,  expressly  denying  fraud,  and  being  decidedly 
in  support  of  the  plea,  though  not  stated  so  to  be:  this  formal  omission  may 
be  supplied  if  the  plea  is  amended. 

An  averment  in  such  a  plea,  that  the  vouchers  have  been  delivered  up,  is  not 
necessary  ;  the  delivering  up  of  vouchers  on  the  settlement  of  an  account  is 
not  essential. 

When  the  bill  is/or  an  account,  it  is  not  required  that  the  plea  should  set  ont  the 
account;  although  this  is  the  proper  course  when  the  account  is  impeached  by 
the  bill. 

When  all  the  allegations  of  the  plea  being  taken  as  true,  do  not  make  out  a  full 
defence;  or  when  necessary  facts  are  to  be  gathered  by  inference  alone ;  the 
plea  cannot  be  sustained. 


On  Bill  and  Plea. 

This  bill  is  filed  by  the  complainant  as  a  legatee,  under  the 
last  will  of  Elizabeth  Butler,  deceased,  (the  mother  of  complain- 
ant,) against  the  defendant  as  executor  of  said  will,  for  an  ac- 
count, and  payment  of  what  on  such  accounting  may  be  found 
due.  By  the  will,  one  half  of  the  personal  estate  is  bequeathed 
to  the  complainant ;  and  the  bill  charges,  that  after  paying  the 


JANUARY  TERM,  1331.  199 

Meeker  v.  Marsh,  Ex'r,  &c. 

debts  and  expenses,  there  remains  a  large  balance  in  the  hands 
of  the  executor,  and  that  he  refuses  to  come  to  any  account,  or 
to  pay  over  to  the  complainant  her  share  of  said  balance.  It  is 
further  charged,  that  if  any  receipt  has  been  given  by  the  com- 
plainant for  her  share,  that  the  same  has  been  fraudulently  ob- 
tained, and  must  have  been  signed  by  her  without  reading  it,  in 
confidence  of  the  honesty  of  the  defendant,  and  supposing  it  to 
be  a  receipt  for  money  on  account  of  the  said  share. 

To  this  bill  the  defendant  has  pleaded,  substantially,  that  on 
the  llth  of  August,  1826,  an  account  in  writing  was  made  out 
and  stated  between  the  defendant  as  executor,  and  the  com- 
plainant as  legatee  under  said  will  ;  and  upon  that  account  there 
was  a  balance  still  due  to  complainant  of  thirteen  dollars  and  six 
cents,  which  was  then  and  there  paid  by  the  defendant  to  the 
complainant,  who  thereupon  gave  a  receipt  in  full  in  the  words 
following : — 

"  PERTH  AMBOY,  Aug.  11,  1826.  Received  of  Joseph  Marsh, 
executor  of  the  estate  of  Elizabeth  Butler,  deceased,  thirteen  dol- 
lars and  six  cents,  in  full  for  the  balance  due  me  on  account  of 
said  estate.  ELIZABETH  MEEKER." 

The  plea  then  avers  that  the  account  is  just  and  true,  and  that 
the  complainant  at  the  time  read  the  receipt  in  full,  or  it  was 
truly  read  to  her  by  the  defendant,  and  she  was  satisfied  with  it, 
and  signed  it  voluntarily  :  that  the  same  was"bona  fide  and  valid ; 
and  the  fraudulent  and  undue  procurement  of  the  receipt  is  ex- 
pressly denied.  The  plea  is  accompanied  with  an  answer  appa- 
rently in  support  of  the  plea,  and  expressly  denying  the  fraud 
charged. 

W.  Chetwood,  for  the  defendant.  The  object  of  the  bill  is, 
simply  to  obtain  an  account,  and  payment  of  the  legacy.  It 
does  not  set  out  an  account,  and  charge  a  mistake:  it  contem- 
plates a  receipt  in  full  having  been  given,  and  charges,  that  if 
such  receipt  was  given,  it  was  unduly  obtained.  The  answer 
denies  the  alleged  fraud  :  this  is  all  that  is  necessary.  It  is  suf- 
ficient in  the  answer  to  deny  the  allegations  of  the  bill. 

The  matters  set  out  in  the  plea,  must  now  be  taken  as  true. 
We  come  before  the  court  on  the  sufficiency  of  the  plea.  If  it  is 


200  CASES  IN  CHANCERY. 

Meeker  v.  Marsh,  Ex'r,  &c. 


sufficient,  the  complainant  may  still  take  issue  upon  it.  I  take 
the  plea  to  be  sufficient  in  form  and  substance,  and,  if  proved,  a 
bar  to  all  the  relief  sought  for  under  the  bill.  The  plea  sets  forth, 
that  at  a  particular  time  an  account  was  stated  between  the  par- 
ties ;  that  a  balance  was  due,  which  was  paid,  and  a  receipt 
given  by  the  complainant  for  the  balance  due  on  account  of  said 
estate;  and  the  receipt  is  set  forth.  This  I  consider  all-sufficient. 
When  an  account  is  sought  for,  an  account  stated  is  a  good  plea 
in  bar,  unless  the  complainant  points  out  specific  errors  or  charges 
of  fraud  in  the  stating  of  the  account :  neither  of  which  is  done 
in  the  present  bill:  Wheat.  Dig.  68,  lit.  Matter  of  Account; 
Coop.  E.  P.  277—9 ;  Miff.  P.  208  ;  1  Oran.  R.  306 ;  3  Atk. 
R.  399. 

O.  8.  Halsted,  for  the  complainant.  We  do  not  contend  that 
an  account  stated  is  not  a  bar,  when  well  pleaded  :  but  put  our- 
selves on  the  ground^  that  no  account  of.  that  estate  was  ever  ren- 
dered to  the  complainant.  We  could  not  therefore  point  out  par- 
ticular errors. 

We  consider  the  plea  in  this  case  defective  in  form  and  sub- 
stance. A  plea  must  aver  all  the  facts  necessary  to  render  it  a 
complete  equitable  defence  :  Beam.  P.  E.  24.  The  plea  of  a 
stated  account  should  aver,  that  the  complainant  and  defendant 
did  make  up,  state  and  settle  an  account.  It  must  aver,  that  it 
was  an  account  of  the  estate  of  which  an  account  is  sought,  and 
of  all  matters  relating  thereto.  It  must  state  that  the  complain- 
ant, after  examination,  approved  of  the  account.  It  must  show 
that  the  account  was  final,  and  aver  that  it  is  just  and  true : 
2  Newl.  C.  P.  132 ;  2  Sch.  and  Lef.  726 ;  Beam.  P.  E.  230 ; 
Coop.E.  P.  277,  n.  1. 

This  plea  is  a  departure  from  the  precedents.  It  does  not  al- 
lege that  it  was  an  account  in  relation  to  this  estate.  There  is 
an  allegation  that  the  same  account  is  just  and  true;  but  what 
account,  is  not  stated.  It  does  not  state  by  whom  the  account 
was  stated  ;  or  allege  that  the  complainant  ever  saw  the  account. 
It  states  that  the  receipt  was  read,  but  not  the  account.  It  should 
have  averred  that  the  vouchers  were  delivered  up,  although  this 
point,  perhaps,  is  not  fully  settled  :  4  Price's  Ex.  JR.  4 ;  Beam. 


JANUARY  TERM,  1831.  201 

Meeker  v.  Marsh,  Ex'r,  &c. 

P.  E.  23d.  And  should  not  the  plea  set  out  the  account  stated  : 
1  Atk.  R.  1  ;  2  Sch.  and  Lef.  728.  If  the  account  was  given, 
the  plaintiff' might  amend  his  bill;  otherwise  manifest  fraud  might 
be  committed.  If  the  plea  is  allowed  we  must  take  issue  on  it, 
and  if  the  facts  as  stated  are  proved,  the  suit  is  at  an  end  :  Beam. 
P.  E.  325.  If,  therefore,  the  subject  matter  is  good,  we  want  the 
proper  facts  stated,  that  we  may  meet  and  controvert  them.  Again, 
we  think  that  the  plea  of  a  simple  receipt,  not  under  seal,  is  not 
good  :  that  it  can  only  be  pleaded  as  an  account,  stated  with  all 
necessary  averments.  In  these  respects  we  consider  the  plea  de- 
ficient. 

There  are  several  objections  to  the  form  of  the  answer.  When 
an  answer  is  put  in  in  support  of  a  plea,  it  must  be  stated  to  be 
made  for  that  purpose  :  1  Turn.  P.  C.  23 ;  2  Newl  P.  C.  127-8  ; 
Beam.  P.  E.  53.  This  answer  purports  to  be  an  answer  to  the 
residue  of  the  bill  only :  we  insist  that  the  plea  ought  to  be  over- 
ruled. 

Mr.  Chetivood,  in  reply.  As  to  the  objection  taken  to  the 
answer : — An  answer  may  be  in  support  of  a  plea,  without 
containing  an  express  allegation  to  that  effect.  It  is  sufficient  if, 
in  the  answer,  the  defendant  saves  all  benefit  of  the  plea.  The 
answer  in  this  case  must  be  considered  in^  support  of  the  plea, 
inasmuch  as  it  contains  an  averment  in  relation  to  the  manner  in 
which  the  receipt  was  obtained,  directly  applicable  to  the  subject 
matter  of  the  plea. 

If  the  plea  can  be  sustained  upon  principle,  it  need  not  con- 
form precisely  to  the  precedents:  Beam.  P.  E.  231.  It  is  not 
necessary  that  the  delivering  up  of  vouchers  to  the  party  should 
be  averred.  It  may  be  proper  to  aver  it  when  it  has  taken  place ; 
but  not  otherwise.  Neither  is  the  defendant  obliged  to  set  out 
the  stated  account,  or  annex  it  to  the  plea;  save  only  when  the 
complainant's  bill  admits  that  there  is  such  an  account,  and  seeks 
to  impeach  it :  Coop.  E.  P.  279.  This  bill  is  not  of  that  de- 
scription ;  it  only  seeks  to  obtain  an  account.  I  admit  that  the^ 
plea  must  contain  all  the  facts  necessary  to  constitute  an 
equitable  defence.  The  precedent  in  Beam,  is  intended  to 
meet  a  complicated  case.  This  is  not  such  a  case.  It  is  the 


202  CASES  IN  CHANCERY. 

Meeker  v.  Marsh,  Ex'r.  &c. 

claim  of  a  single  legatee,  against  the  executor,  for  her  legacy  un- 
der the  will :  nothing  else  connected  with  it,  and  no  other  party 
concerned.  The  plea  meets  this  case :  it  sets  out  that  an  account 
was  made  out  and  stated  between  these  parties,  in  their  respect- 
ive capacities  of  executor  and  legatee ;  that  upon  that  account 
there  was  a  balance  due  the  complainant ;  which  was  paid,  and 
a  receipt  given  by  the  complainant  in  full  for  the  balance  due  her 
on  account  of  said  estate ;  and  the  receipt  itself  is  set  out,  in  hcec 
verba.  Nothing  could  be  more  explicit  than  the  receipt,  which 
forms  part  of  the  plea.  Does  not  the  plea,  then,  contain  all  the 
facts  necessary  to  constitute  an  equitable  defence?  To  me  it  ap- 
pears that  nothing  more  could  be  required. 

THE  CHANCELLOR.  Two  questions  are  raised:  1.  Whether 
the  plea  is  good  in  form  and  substance.  2.  Whether  it  is  support- 
ed by  the  answer. 

On  hearing  this  case,  I  was  inclined  td  the  opinion  that  the  plea 
was  substantially,  though  not  formally  correct,  and  that  it  should 
be  allowed.  Further  examination  has  satisfied  me  that  at  least 
one  of  the  exceptions  urged  by  the  complainant's  counsel  is  well 
taken.  The  plea  is  drawn,  apparently,  without  attention  to  the 
most  approved  precedents.  Such  is  the  peculiar  nature  of  this 
kind  of  pleading  in  equity,  that  a  court  should  always  be  careful 
to  see  that  it  sets  forth  plainly  and  explicitly  every  matter  neces- 
sary to  constitute  a  complete  defence  and  bar  to  the  complainant's 
claim.  For  if  the  plea  be  allowed  by  the  court  as  correctly 
pleaded,  and  is  afterwards  proved,  the  cause  is  at  an  end.  The 
allowance  of  a  plea,  says  Ld.  Redesdale,  is  as  complete  a  judg- 
ment against  the  claims  of  the  plaintiff,  as  can  be  given  on  the 
most  solemn  and  deliberate  hearing  of  the  cause  on  the  pleadings 
and  proofs,  provided  the  truth  of  the  plea  be  established  by  evi- 
dence :  2  Scho.  and  Lef.  725,  Roche  v.  Morgell. 

The  exception,  that  the  plea  does  not  sufficiently  allege  that 
the  account  stated  between  the  parties  was  in  relation  to  the 
claims  of  the  plaintiff  as  a  legatee  under  the  will  of  Elizabeth 
Butler,  deceased,  is  not  sustainable.  The  plea  alleges  that  the 
account  stated  was  "  between  this  defendant,  as  executor  of  the 
said  Elizabeth  Butler,  deceased,  and  the  complainant,  as  one  of 
the  legatees  or  persons  entitled  under  the  said  will  of  Elizabeth 


JANUARY  TERM,  1831.  203 

Meeker  v.  Marsh,  Ex'r,  &c. 

Butler,  deceased  ;  and  upon  that  account  there  was  a  balance,"  &c. 
This  is  deemed  to  be  sufficiently  certain. 

Another  exception,  that  the  plea  does  not  allege  the  vouchers 
to  have  been  delivered  up  on  the  settlement,  is  too  fastidious. 
Where  such  delivery  up  has  in  fact  taken  place,  the  averment 
raay  very  properly  be  made  in  a  plea  of  this  nature;  yet  such  an 
averment  is  not  necessary,  and  for  the  plain  reason,  that  the  de- 
livery up  of  vouchers  on  the  settlement  of  an  account  is  not 
held  to  be  essential:  Miff.  211;  Coop.  Eq.  280;  Willis  v.  Jer- 
negan,  2  Aik.  250 ;  Wharlon  v.  May,  5  Ves.  27 ;  Beam.  P.  E. 
230,  231. 

Nor  is  it  required,  when  the  bill  is  for  an  account,  that  the  plea 
should  set  out  the  account.  This  is  the  proper  course  when  the 
account  is  impeached  by  the  bill  :  31  iff.  211 ;  Coop.  279;  Beam's 
Pleas,  230. 

But  the  principal  objection  to  the  plea  is,  that  it  does  not  state 
that  the  complainant  and  defendant  made  up,  stated  and  settled  an 
account  in  writing ;  and  that  the  complainant,  o/ter  examination, 
approved  of  said  account.  These  allegations  are  to  be  found  in  all 
the  precedents,  and  appear  to  me  important.  The  plea  states,  that 
on  the  day  therein  mentioned,  "  an  account  in  writing  was  made 
out  and  stated  between  this  defendant,  as  executor  of  the  said 
Elizabeth  Butler,  deceased,  and  the  complainant,  as  one  of  the 
legatees  or  persons  entitled  under  the  said  will  of  said  Elizabeth 
Butler,  deceased  ;  and  upon  that  account  there  was  a  balance  still 
due  the  complainant  of  thirteen  dollars  and  six  cents,  which 
balance  was  then  and  there  paid,"  &c.  It  further  states  that  the 
complainant  gave  a  receipt,  which  she  read  herself  or  the  same 
was  truly  read  to  her  by  the  defendant ;  that  she  was  fully  satisfied 
with  the  receipt,  and  voluntarily  signed  it,  &c.  Now  all  this 
may  be  true,  and  yet  the  complainant  may  not  have  been  present 
when  the  account  was  made  out  and  stated,  and  may  never  have 
seen  or  examined  it.  In  these  particulars,  I  consider  the  plea 
faulty.  When  all  the  allegations  of  the  plea,  being  taken  as  true, 
do  not  make  out  a  full  defence,  the  plea  cannot  be  sustained. 
These  matters  appear  to  me  material,  and  I  cannot  feel  at 
liberty  to  allow  a  plea  in  which  there  are  such  important  omis- 
sions, or  from  which  necessary  facts  are  to  be  gathered  from  infer- 
ence alone. 


204  CASES  IN  CHANCERY. 


Miller  and  Stiger  v.  Wack  et  al. 


But  I  am  not  disposed,  even  on  these  grounds,  to  overrule  the 
plea.  I  feel  bound  to  believe  that  these  omissions  are  accidental 
and  not  intentional,  and  that  they  can  readily  be  supplied ;  and, 
under  this  impression,  I  shall  do  as  was  done  by  Ld.  Eldon,  in 
Bayky  v.  Adams,  6  Vcs.  586  ;  and  by  Ch.  Kent,  in  Allen  v.  Ran- 
dolph, 4  /.  C.  R.  697 ;  allow  the  defendant  to  amend  his  plea  in 
these  particulars,  if  he  shall  request  so  to  do.  The  amendment  is 
to  be  made  in  twenty  days,  and  a  copy  furnished  the  plaintiff's 
solicitor,  free  from  expense;  and  in  default  thereof,  the  plea  is 
ordered  to  stand  for  an  answer,  with  leave  to  the  complainant  to 
except  to  it. 

On  the  second  question,  I  am  of  opinion  that  the  answer  is 
decidedly  in  support  of  the  plea,  though  not  stated  so  to  be.  This 
formal  omission  may  be  supplied  if  the  plea  is  amended. 

CITED  in  Flagg  v.  JBonnel,  2  Stockt.  86 ;  Frey  v.  Demarest,  1  C.  E.  Gr.  239. 


JACOB  MILLER  AND  NATHAN  STIGER  v.  DAVID  WACK  AND 
WIFE,  AND  OTHERS. 


A  mortgage  given  by  a  guardian  to  his  sureties  in  the  guardianship  bond,  reciting 
the  bond  given  to  the  ordinary,  and  conditioned  "that  if  the  said  guardian 
should  and  would  faithfully  comply  with  the  condition  of  the  said  bond,  by 
paying  over  to  the  minor  mentioned  in  said  bond,  all  the  moneys  in  the 
handi  of  the  said  guardian,  as  guardian  of  the  said  minor,  when  he  arrives 
at  full  age,  then  the  said  mortgage  and  bond  should  cease  and  be  void" — 
creates  no  trust  for  the  benefit  of  the  minor.  The  mortgagees  are  the  abso- 
lute owners  of  the  mortgage :  they  have  the  legal  and  beneficial  interest  in 
it,  and  have  a  right  to  treat  it  as  their  own. 

A  second  mortgagee,  and  those  holding  under  him,  are  to  be  charged  with  con- 
structive notice,  of  a  prior  mortgage,  on  record  and  undischarged,  at  the  time 
of  the  execution  and  recording  of  the  second  mortgage. 

When  a  first  mortgage  is  cancelled  on  the  record,  the  legal  priority  attaches  to  the 
second  mortgage,  unless  it  should  appear  that  the  first  mortgage  was  improp- 
erly and  fraudulently  cancelled,  without  payment  or  satisfaction,  and  without 
the  consent  of  the  first  mortgagees  or  either  of  them. 

The  general  rule  is,  that  when  matter  is  set  up  by  the  defendants  in  avoidance  of 
the  complainant's  claim,  it  must  be  proved  otherwise  than  by  the  answer. 

When  a  bond  has  been  casually  lost,  a  party  is  at  liberty  to  come  into  this 
court  for  discovery,  or  for  discovery  and  relief.  If  he  comes  for  discovery 
only,  it  is  in  aid  of  his  common  law  remedy.  If  he  comes  for  discovery 


JANUARY  TERM,  1831.  205 

Miller  and  Stiger  v.  Wack  et  al. 

and  also  for  relief,  it  is  usual  to  attach  to  the  bill  an  affidavit  of  the  loss  of 
the  deed. 

This  affidavit  is  not  required  as  evidence  of  the  loss,  but  to  establish  the  propriety 
of  this  court's  exercising  jurisdiction.  If  the  defendant  by  his  answer  does 
not  admit  the  loss,  the  complainant  is  put  upon  his  proof. 

The  rule  in  courts  of  law,  is,  that  a  party  in  a  cause  alleging  the  loss  of  a  paper, 
is  competent  to  prove  such  loss,  for  the  purpose  of  letting  in  secondary  evi- 
dence of  the  contents ;  but  the  court  will  be  careful  that  such  evidence  is 
confined  strictly  to  the  fact  of  loss. 

The  oath  of  the  defendant,  in  his  answer,  that  the  mortgage  (he  sets  up)  was 
taken  away  and  cancelled  by  the  mortgagor  fraudulently,  and  without  his  con- 
sent, is  to  the  very  point  in  controversy,  and  does  not  come  within  the  rule 
which  admits  the  oath  of  a  party  to  prove  the  loss  of  a  paper,  for  the  pur- 
pose of  letting  in  secondary  evidence  of  the  contents,  &c. 

The  simple  cancellation  of  a  mortgage  on  the  record,  is  not  an  absolute  bar,  unless 
there  has  been  actual  satisfaction.  It  is  not  conclusive  evidence ;  the  facts 
may  still  be  investigated.  But  it  is  evidence  of  a  high  character,  and  suffi- 
cient to  sustain  the  rights  of  all  persons  interested,  unless  the  parly  setting 
ap  the  cancelled  mortgage  shall  show  satisfactorily,  some  accident,  mistake, 
or  fraud. 

The  answer  of  the  defendant  is  no  evidence  of  the  fraudulent  abduction  of  the 
mortgage:  it  cannot  be  admitted  to  repel  the  strong  presumptive  evidence 
of  payment  or  satisfaction,  arising  from  the  cancellation  of  the  mortgage  on 
the  record. 

It  is  the  province  and  the  duty  of  this  court,  to  decide  upon  the  facts  and  the  law, 
except  in  cases  of  real  difficulty,  growing  out  of  contradictory  testimony,  or 
opposing  facts  and  circumstances,  which  it  is  impossible  for  the  court  to  rec- 
oncile: then  an  issue  is  directed  to  inform  the  cctnscience  of  the  court. 


The  bill  in  this  case  was  filed  upon  two  mortgages,  given  by 
David  Wack  and  wife,  to  other  persons,  by  whom  they  were  as- 
signed to  the  complainants.  There  was  a  decree,  pro  confesso, 
against  David  Wack  and  wife,  the  mortgagors.  Tht  other  de- 
fendants, Jacob  Wack,  Aaron  Ayres,  and  Aaron  Ayres,  jun.,  by 
their  answer,  set  up  an  intermediate  mortgage  on  the  same  pre- 
mises, given  by  David  Wack  and  wife  to  Aaron  Ayres  and  Ja- 
cob Wack.  This  mortgage  sets  forth,  that  David  Wack  was  the 
guardian  of  Aaron  Ayres, jun.:  that  he  had  executed  a  bond  to 
the  ordinary,  in  the  penal  sum  of  two  thousand  dollars :  that  the 
said  Aaron  Ayres  and  Jacob  Wack  were  his  sureties  in  the  said 
bond.  And  the  condition  of  the  mortgage  was,  "now  if  the 
said  David  Wack  shall  and  will  faithfully  comply  with  the  con- 
dition of  the  said  bond,  by  paying  over  to  Aaron  Ayres,  jun.,  the 


206  CASES  IN  CHANCERY. 

Miller  and  Stiger  v.  AVack  etal. 

minor  mentioned  in  said  bond,  all  the  moneys  in  the  hands  of 
the  said  David  Wack  as  gtiardian  of  the  said  Aaron  Ayres,  jun., 
when  he  arrives  at  full  age,  without  any  deduction,  &c.,  then  these 
presents  and  the  said  bond  shall  cease  and  be  void,"  &c.  The 
mortgage  was  executed  and  recorded,  subsequent  to  the  complain- 
ants' first  mortgage,  and  prior  to  their  second  mortgage ;  and  was 
undischarged  at  the  time  of  the  recording  of  the  complainants'  sec- 
ond mortgage,  but  was  cancelled  on  the  record  three  days  after- 
wards. 

The  defendants  in  their  answer  allege  that  'this  mortgage  was 
unduly  obtained  from  Ayron  Ayres,  sen.,  who  had  it  in  custody, 
by  David  Wack,  the  mortgagor,  on  pretence  that  he  wanted  to  look 
at  it,  and  would  bring  it  back  again  ;  and  that  he  fraudulently 
took  it  to  the  clerk's  office  and  had  it  cancelled  on  the  record,  with- 
out the  consent  of  the  mortgagees,  and  without  payment  or  satis- 
faction. And  they  insist  that  the  cancellation  is  fraudulent  and 
void,  and  set  up  this,  mortgage  as  a  subsisting  lien  upon  the 
property,  and  entitled  to  priority  over  the  complainants'  second 
mortgage ;  and  whether  it  was  or  not,  was  the  question  in  this 
case.  • 

The  case  was  argued  in  January,  1829,  and  the  opinion  of  the 
court  delivered  in  April,  1829  ;  in  which  the  Chancellor,  declaring 
"  that  under  the  circumstances  he  could  not  determine  that  the 
mortgage  of  the  defendants  had  not  been  cancelled  with  the  con- 

o    o 

sent  of  the  mortgagees,"  directed  an  issue  to  ascertain  that  fact,  if 
the  defendants  required  it.  The  defendants  elected  to  take  the 
issue,  and  gave  notice  thereof  to  the  complainants'  counsel.  The 
complainants  obtained  an  order  for  re-hearing  ;  and  the  cause  came 
on  for  farther  argument,  and  for  final  hearing  and  decree.  The 
facts  appear  in  the  opinion  of  the  court. 

JS.  Van  Arsdale,  for  the  complainants,  ,  „ 

N.  Saxton,  for  the  defendants. 

THE  CHANCELLOR.  David  Wack,  being  the  owner  of  ninety- 
nine  acres  of  land  in  the  county  of  Warren,  mortgaged  the  same 
on  the  21st  May,  1824,  to  George  McCracken,  for  two  hundred 


JANUARY  TERM,  1831.  207 

Miller  and  Stiger  v.  Wack  et  al. 

and  fifty  dollars.  This  mortgage,  having  been  duly  registered  on 
the  24th  May,  1824,  was  on  the  27th  May,  1825,  assigned  over 
by  McCraekeo  to  John  Allen  Taylor,  for  a  valuable  considera- 
tion. On  the  12th  April,  1825,  David  Wack  mortgaged  the 
ame  premises  to  the  said  John  Allen  Taylor,  to  secure  the  pay- 
ment of  eight  hundred  dollars.  This  last  mortgage  was  regis- 
tered on  the  16th  of  the  same  month  of  April.  On  the  21st 
August,  1826,  Taylor  being  the  holder  of  both  mortgages,  as- 
signed them  to  the  complainants;  who  now  seek  to  foreclose  the 
equity  of  redemption  and  sell  the  mortgaged  premises,  to  raise 
the  money  due  them.  Aaron  Ayres  and  Jacob  Wack  are  made 
parties  as  being  subsequent  mortgage  creditors,  and  Aaron  Ayres, 
jun.  as  holding  a  subsequent  judgment. 

The  bill  has  been  taken,  pro  confesso,  as  against  the  mort- 
gagor. Aaron  Ayres,  Jacob  Wack,  and  Aaron  Ayres,  jun.  have 
answered.  They  set  up  by  their  answer,  that  about  the  year 
1820,  David  Wack  became  the  guardian  of  Aaron  Ayres,  jun., 
who  was  then  a  minor:  that  he  entered  into  a  guardianship  bond 
with  Aaron  Ayres  and  Jacob  Wack  as  his  securities,  in  the  sum 
of  twelve  hundred  dollars:  that  to  indemnify  them  he  gave  them 
a  mortgage  on  the  premises  in  question,  conditioned  for  the  faith- 
ful execution  of  the  trust :  that  for  the  accommodation  of  David 
Wack,  the  mortgagor,  this  mortgage  was  given  up  by  the  mort- 
gagees to  be  cancelled,  and  was  actually  ^cancelled,  and  a  new 
mortgage  was  given  on  the  22d  May,  1824,  as  a  substitute, 
which  was  registered  on  the  24th  May,  1824.  This  second  mort- 
gage was  placed  in  the  hands  of  Aaron  Ayres,  one  of  the  mort- 
gagees;  who  alleges  in  the  answer,  that  David  Wack,  the  mort- 
gagor, afterwards  came  to  his  house  and  requested  to  see  the 
mortgage;  that  on  its  being  handed  to  him  he  refused  to  give  it 
back,  and  contrary  to  the  will  of  the  said  Aaron  Ayres  he  kept 
and  carried  away  the  mortgage,  and  afterwards  procured  it  to  be 
cancelled  of  record.  They  further  say,  that  David  Wack  after- 
wards, on  the  llth  June,  1825,  made  a  third  mortgage  to  Ayres 
and  Jacob  Wack,  which  he  procured  to  be  registered  on  the  1st 
day  of  July,  1826;  but  that  he  did  not  deliver  it  to  the  mort- 
gagees, or  either  of  them,  until  about  the  time  of  the  recording 
of  the  last  mortgage,  when  he  met  them  at  Hackettstown  and 


208  CASES  IN  CHANCERY. 

Miller  and  Stiger  v.  Wack  et  al. 

there  offered  to  them  the  last  mentioned  mortgage,  which  they 
refused  to  accept  in  lieu  of  the  former  mortgage ;  but  that  Jacob 
Wack,  one  of  the  mortgagees,  took  possession  of  it  as  a  farther 
or  collateral  security  only,  and  at  the  same  time  demanded  the 
former  mortgage.  David  Wack  afterwards  gave  up  the  former 
mortgage,  cancelled,  to  Jacob  Wack,  who  delivered  it  to  the  said 
Aaron  Ayres,  jun.  on  his  becoming  of  age:  and  Aaron  Ayres, 
jun.  now  sets  up  this  mortgage  as  a  subsisting  lien  on  the  prem- 
ises, prior  to  the  second  mortgage  of  the  complainants. 

The  original  mortgage  given  by  David  Wack  to  Aaron  Ayres 
and  Jacob  Wack,  does  not  appear  to  have  been  given  for  the 
benefit  of  Aaron  Ayres,  jun.,  the  minor.  He  sets  up  in  the 
answer,  that  it  was  upon  condition  that  the  money  was  to  be 
secured  by  mortgage,  that  he  chose  David  Wack  for  his  guar- 
dian ;  but  the  mortgage  is  evidently  taken  by  the  securities  of  the 
guardian,  for  their  indemnity.  They  were  liable  to  the  ward  by 
means  of  the  guardianship  bond,  and  their  object  was  to  protect 
themselves  from  any  danger  or  less  arising  from  that  liability. 
There  is,  then,  no  trust  connected  with  the  mortgage.  The 
morlgagees  were  the  absolute  owners,  having  the  legal  and  bene- 
ficial interest  in  it.  They  treated  it  as  their  own,  and  very  pro- 
perly. The  first  mortgage  was  delivered  up  by  them  to  be  can- 
celled for  the  accommodation  of  Wack,  who  wanted  the  property 
cleared  to  settle  some  matter  of  boundary  with  one  of  his  neigh- 
bors. A  second  mortgage  was  taken  as  a  substitute,  with  the 
same  proviso  as  the  first;  and  they  were  at  liberty  to  deliver  up 
this  security  at  any  time,  and  for  any  purpose.  This  second 
mortgage  came  into  the  possession  of  the  mortgagor,  (at  what 
time  is  not  stated,)  and  on  the  19th  of  April,  1825,  was  can- 
celled of  record.  Prior  to  this  cancellation,  viz.  on  the  12th  of 
April,  1825,  the  mortgage  from  David  Wack  to  John  Allen 
Taylor,  for  eight  hundred  dollars,  was  registered.  The  question 
is  between  these  two  mortgages.  The  complainants,  who  hold 
the  Taylor  mortgage,  insist  that  the  cancellation  of  the  prior 
mortgage  to  Wack  and  Ayres,  is  a  bar  to  the  pretensions  of  the 
defendants  :  that  they  have  the  legal  priority  on  the  record,  and 
are  entitled  to  retain  it  in  this  court.  And  they  further  say,  that 
even  if  the  defendants  might  claim  relief  on  the  grounds  set  ou» 


JANUARY  TERM,  1831.  209 

Miller  and  Stiger  v.  Wack  et  al. 

in  the  answer,  yet  that  the  the  material  allegations  on  which  their 
claim  must  rest  are  proved  in  no  other  way  than  by  the  answer 
itself,  which  is  not  sufficient.  On  the  other  hand,  it  is  insisted 
that  the  mortgage  from  David  Wack  to  Aaron  Ayres  and  Jacob 
Wack,  was  fraudulently  cancelled  ;  that  it  was  neither  "redeem- 
ed, paid  or  discharged,"  in  the  language  of  the  act;  and  that  the 
cancellation  is  no  bar  to  the  mortgage,  but  that  the  same  is  an 
existing  lien  on  the  property ;  and  that  the  material  allegations 
of  the  answer  are  sufficiently  proved. 

The  claim  of  the  plaintiffs  is  manifest  from  the  record,  and 
therefore  no  time  need  be  spent  in  canvassing  it.  The  difficulty 
arises  from  the  matter  set  up  in  avoidance  of  it,  in  the  answer  of 
the  defendants.  They  allege,  that  at  the  time  of  the  registry  of 
the  Taylor  mortgage,  there  was  a  prior  mortgage  on  record  from 
Wack  to  Jacob  Wack  and  Aaron  Ayres,  which  was  uncancelled, 
and  of  which  Taylor  had  notice.  This  is  certainly  true;  and 
although  it  is  attempted  to  be  made  out  by  those  holding  under 
Taylor,  that  he  lent  his  money  on  the  faith  of  that  mortgage 
being  cancelled,  it  does  not  so  appear  in1  point  of  fact.  If  David 
Wack  had  the  mortgage  in  his  hands  at  the  time,  uncancelled^ 
it  is  strange  that  it  was  not  cancelled  of  record  before  or  'at  the 
time  when  the  Taylor  mortgage  was  registered.  It  was  not  done 
until  three  days  afterwards ;  and  Taylor,  and  those  holding  un- 
der him,  are  to  be  charged  with  constructive*- notice  of  this  prior 
mortgage.  When,  however,  the  mortgage  from  David  Wack  to 
Aaron  Ayres  and  Jacob  Wack  was  cancelled  of  record,  the  legal 
priority  attached  to  the  Taylor  mortgage,  unless  the  facts  are  true, 
as  set  up  by  the  defendant's  answer,  th*at  the  mortgagor  impro- 
perly and  fraudulently  obtained  possession  of  and  cancelled  the 
mortgage,  without  the  will  and  consent  of  the  mortgagees  or  ei- 
ther of  them,  and  without  having  made  satisfaction  or  payment. 
If  these  facts  are  proved,  another  important  question  may  arise 
as  between  these  parties. 

The  principle  is  settled,  that  when  matter  is  set  up  in  the  an- 
swer in  avoidance  of  the  plaintiff's  claim,  it  must  be  proved  oth- 
erwise than  by  the  answer :  Thompson  v.  Lambe,  1  Ves.  587 ; 
Boardman  v.  Jackson,  2  Ball  &  Beatty,  382 ;  Bechvith  v. 
Butler,  1  Wash.  Rep.  224;  Paynes  v.  Coles,  1  Munf.  Rep. 

o 


210  CASES  IN  CHANCERY. 

Miller  and  Stiger  v.  Wack  et  al. 

373;  Bush  v.  Livingston  &  Townsend,  2  Caine's  C.  in  Er- 
ror, 66;  1  Johns.  R.  580,  Green  v.  Hart;  and  Hart  v.  Ten 
Eyck,  2  /.  C.  R.  92. 

The  first  inquiry  then  is,  what  evidence  has  been  adduced  of 
the  facts  stated  in  the  answer  by  Aaron  Ayres — for  he  is  the  per- 
son who  had  possession  of  the  mortgage,  and  the  only  one  of  the 
defendants  who  has  any  knowledge  of  the  manner  in  which  it 
was  procured  by  David  Wack.  There  have  been  three  witnesses 
examined,  but  neither  of  them  speaks  on  this  subject.  It  was 
contended  that,  inasmuch  as  the  object  for  which  the  mortgage 
was  taken  was  not  yet  accomplished,  the  mortgagees  would  not 
voluntarily  have  yielded  their  security.  This  raises  a  presumption 
in  their  favor,  but  it  is  a  mere  presumption.  They  might  have 
supposed  themselves  safe  enough  without  it;  and  the  fact  that, 
according  to  their  own  statement,  they  rested  quietly  for  a  whole 
year  at  least,  after  the  mortgage  was  withdrawn,  shows  that  such 
withdrawal  did  not  occasion  much  alarm  and  anxiety.  After  a 
careful  examination  of  the  whole  case,  I  am  unable  to  find  any 
evidence  to  sustain  the  facts  charged  in  the  answer,  nor  do  I 
think  that  the  circumstances  are  such  as  to  justify  any  proper 
conclusion  in  favor  of  their  truth. 

But  it  is  contended  by  the  defendants,  that  the  general  rule,  as 
above  stated,  does  not  apply  to  this  case  :  that  this  is  one  of  those 
cases  in  which  the  oath  of  the  party  shall  be  received,  e$  neces- 
sitate rei,  and  to  prevent  him  from  being  deprived  of  his  rights. 
There  is  a  class  of  decisions  which  authorizes  the  introduction  of 
the  oath  of  a  party,  and  makes  it  quasi  evidence  to  a  certain 
extent;  and  it  becomes  important  to  inquire  into  the  principle  of 
those  decisions,  and  whether  the  case  now  before  the  court  will 
fall  within  it. 

Where  a  bond  has  been  casually  lost,  a  party  is  at  liberty  to 
come  into  this  court  for  discovery,  or  for  discovery  and  relief.  If 
he  comes  for  discovery  merely,  it  is  in  aid  of  his  common  law 
remedy,  which  is  a  well  settled  head  of  equity  jurisdiction.  If  he 
comes  for  discovery  and  also  for  relief,  it  is  usual  to  attach  to  the 
bill  an  affidavit  of  the  loss  of  the  deed.  This  affidavit  is  not 
required  as  evidence  of  the  loss,  but  to  establish  the  propriety  of 
this  court'-s  exercising  jurisdiction.  If  the  defendant,  by  his  an- 


JANUARY  TERM,  1831.  211 

Miller  arid  Stiger  v.  Wack  et  al. 

Kwer,  does  not  admit  the  loss,  the  plaintiff  is  put  upon  his  proof: 
East  India  Co.  v.  Boddam,  9  Yes.  466.  And  this  is  the  gene- 
ral doctrine  of  the  court  with  respect  to  lost  papers,  on  which  the 
plaintiff  seeks  to  recover.  The  object  of  the  affidavit  was,  ori- 
ginally, to  give  jurisdiction  to  the  court;  and  therefore  it  is 
laid  down  by  a  late  writer,  that  if  the  defendant  should  not  by 
confession  supply  the  want  of  evidence  of  the  deed,  the  plaintiff 
must,  in  order  to  obtain  this  court's  interference,  prove  to  its  satis- 
faction by  other  means,  the  original  existence,  and  the  loss  or 
casual  destruction  thereof,  and  the  purport  of  its  contents:  Jer. 
Eq.  Juris.  359-60.  This  would  seem  to  be  confining  the  rule 
within  narrower  limits  than  is  now  done  in  courts  of  law.  The 
rule  as  now  settled  at  law  is.  that  a  party  in  a  cause  alleging  the 
loss  of  a  paper,  is  competent  to  prove  such  loss,  for  the  purpose  of 
letting  in  secondary  evidence  of  the  contents.  But  as  it  is  a 
sound  maxim  that  a  party  is  never  allowed  to  be  a  witness  in  his 
own  cause,  the  court  will  always  take  care  that  such  testimony 
is  confined  strictly  to  the  fact  of  the  loss,  which  is  merely  auxil- 
iary to  the  trial,  and  does  not  involve  the  matter  in  controversy. 
The  testimony,  says  Chief  Justice  Marshall,  in  Taylor  v.  Riggs, 
I  Peters,  597,  which  establishes  the  loss  of  a  paper,  is  adduced 
to  the  court,  and  does  not  relate  to  the  contents  of  the  paper,  nor 
affect  the  issue  to  be  tried  by  the  jury.  It  may  be  important,  as 
letting  the  party  in  to  prove  the  justice  of  the^.  cause,  but  does  not 
itself  prove  any  thing  in  the  cause.  But  admitting  the  rule  to 
be  the  same  in  law  and  equity,  (and  I  know  not  why  they  should 
differ,)  that  the  oath  of  a  party  is  received  as  a  foundation  for 
secondary  evidence  to  prove  the  contents  of  a  lost  instrument, 
does  it  affect  the  case  now  before  the  court?  The  object  here  is 
not  to  make  use  of  the  defendant's  oath  for  the  purpose  of  intro- 
ducing secondary  evidence,  and  thereby  get  at  the  purport  of  the 
mortgage ;  for  the  mortgage  itself  is  before  the  court,  and  on 
production  the  contents  of  it  are  manifest.  The  object  is,  by  that 
oath,  to  prove  the  fact  that  the  mortgage  was  fraudulently  taken 
away  by  David  Wack.  Now  that  is  the  very  point  in  contro- 
versy, and  it  is  perfectly  plain  that  if  the  defendant's  oath  can  be 
considered  as  testimony,  he  proves  by  it  every  thing  necessary  to 
enable  him  to  recover ;  or  at  all  events  imposes  on  the  opposite 


212  CASES  IN  CHANCERY. 

Miller  and  Stiger  v.  Wack  et  al. 

party  the  burden  of  showing  that  he  came  honestly  and  fairly  by 
the  paper.  He  proves  by  it  an  important  fact  in  the  cause,  going 
to  affect  the  issue;  which  according  to  the  doctrine  of  Chief  Jus- 
tice Marshall,  cannot  be  done  by  the  oath  of  the  party.  It  ap- 
pears tc  me,  then,  that  the  case  now  before  the  court  is  not  at  all 
within  the  principle  of  the  authorities  referred  to;  and  if  this  is 
to  be  considered  as  an  exception  from  the  general  rule  of  evidence, 
that  matters  charged  in  the  answer  not  responsive  to  the  bill,  are 
to  be  proved,  it  must  be  ou»some  other  ground. 

I  arn  aware  there  is  one  case  to  be  found  which  seems  to  give 
countenance  to  the  principle  contended  for  by  the,  defendants' 
counsel.  It  is  that  of  Atkin  v.  Farr,  1  Aik.  287,  decided  by  Ld. 
Hardwicke.  There  was  a  bill  filed  for  the  delivery  of  a  bond 
which  had  been  given  to  the  defendant  to  read,  who  took  it,  and 
against  the  consent  of  the  owner,  put  it  in  his  pocket  and  went 
away  with  it.  The  defendant  admitted  the  execution  of  the  bond, 
but  set  up  that  it  was  delivered  voluntarily;  and  the  question 
was,  whether  the  plaintiff  had  proved  his  case.  The  Ld.  Chan- 
cellor says,  "  though  the  proof  of  the  bond's  being  forced  from 
her  is  by  one  witness  only,  it  is  no  objection  in  this  case,  for  the 
plaintiff  herself  was  entitled  to  make  oath  of  the  loss  of  the  bond, 
and  that  it  was  thus  taken  from  her;  and  as  this  fact  is  proved 
by  the  oath  of  one  witness  against  the  oath  of  the  defendant  in 
his  answer,  and  as  there  is  likewise  proof  of  the  defendant's 
offering  to  execute  a  new  bond;  that  is  a  circumstance  sup- 
porting the  evidence  of  this  single  witness,  sufficient  to  take  it 
out  of  the  general  rule."  I  do  not  understand  that  in  this  case 
the  oath  of  the  party  was  ever  called  for,  much  less  that  it  was 
relied  on  by  the  court.  It  would  have  been  regular,  as  we  have 
already  seen,  to  annex  to  the  bill  an  affidavit  of  the  loss  of  the 
bond.  It  does  not  appear  that  even  this  was  done  in  that  in- 
stance, and  the  case  was  certainly  proved  without  it.  I  do  not 
feel  satisfied  to  take  this  dictum  of  the  learned  chancellor  in  its 
length  and  breadth,  as  full  authority,  unsupported  as  it  appears 
to  be  by  any  other  decision,  and  contrary  to  the  settled  principles 
and  policy  of  the  law. 

But  it  ie  insisted  that  the  oath  of  the  injured  party  is  sufficient, 
in  odium  spoliatoris,  to  charge  the  wrong  doer;  and  it  is  at- 


JANUARY  TERM,  1831.  213 

Miller  and  Stiger  v.  Wack  et  al. 

tempted  to  bring  this  case  under  that  rule.  The  only  case  cited  of 
any  kind  of  authority,  is  that  of  Childerns  v.  Saxby,  1  Vern.  207. 
There  an  execution  had  been  taken  out  contrary  to  an  injunction 
of  the  court  of  chancery,  and  the  defendant  in  the  execution  com- 
plained that  the  bailiff  who  served  the  execution  had  taken  from  a 
certain  hiding-place  in  the  house  one  hundred  and  fifty  pounds  in 
money,  and  done  great  spoil  to  his  goods.  The  Ld.  Chancellor 
ordered  that  the  bailiff  should  make  good  this  money,  "  and 
should  satisfy  all  other  damage  which  the  defendant  should  swear 
he  had  sustained."  The  matter  -afterwards  came  on  before  the 
lord  keeper  King,  and  it  was  insisted  that  this  order  was  most 
unjust;  for  that  the  most  this  court  would  do  was  to  put  the 
parties  accused  to  purge  themselves  upon  oath  ;  but  by  the  order 
of  the  chancellor,  the  defendant  was  to  be  the  judge  of  his  own 
damage.  But  the  lord  keeper  held  the  order  just,  and  said,  he 
thought  it  an  idle  practice  in  the  court,  to  put  a  thief  to  his  oath 
to  accuse  himself;  for  he  that  has  stolen  will  not  stick  to  forswear 
it,  and  therefore,  in  odium  spoliatoris,  the  oath  of  the  party  injured 
should  be  a  good  charge  upon  him  that  has  done  the  wrong,  and 
confirmed  the  order. 

I  apprehend  that  a  court  of  equity,  at  the  present  day,  is  under 
no  very  binding  obligation  to  consider  the  doctrine  of  that  case  as 
sound  law,  or  wholesome  justice.  I  do  not  find  that  the  precedent 
has  been  followed,  and  I  am  not  willing  to  ad$pt  it  as  the  practice 
of  this  court.  But  without  speculating  further  on  the  correctness 
of  the  decision,  it  will  be  a  sufficient  answer  to  say,  that  its  object 
was  merely  personal.  It  was  strictly  in  odium  spoliatoris,  and  to 
operate  upon  him  who  hmd  done  the  wrong.  The  case  before  the 
court  is  altogether  different.  Here  the  oath  of  the  party  is  to  have 
no  effect  against  the  wrong-doer.  It  is  to  operate  exclusively 
against  third  persons,  strangers  to  the  transaction,  having  legal  and 
vested  rights ;  and  those  rights  are  to  be  seriously  affected,  if  not 
destroyed  by  it. 

Upon  this  view  of  the  subject,  I  am  fully  of  the  opinion  that  the 
charge  of  the  fraudulent  abduction  of  the  mortgage  is  not  proved, 
and  that  the  answer  of  the  defendant  in  that  behalf  is  no  evidence 
of  the  fact. 

But  there  is  another  ground  taken  by  the  defendants,  which  it 


214  CASES  IN  CHANCERY. 

Miller  and  Stiger  v.  Wack  et  al. 

is  insisted  on  is  sufficient  to  sustain  the  priority  of  their  mortgage. 
They  say,  there  is  full  proof  that  the  mortgage  once  existed,  and 
full  proof  of  the  contents  of  the  mortgage.  They  say  further,  that 
by  the  act  of  the  legislature  it  is  enacted  (Rev.  Laws,  464)  "  that 
when  any  registered  mortgage  shall  be  redeemed,  paid  and  dis- 
charged, it  shall  be  the  duty  of  said  clerk,  on  application  made  to 
him  by  the  mortgagor,  or  person  redeeming,  paying  and  discharg- 
ing the  said  mortgage,  and  producing  to  him  the  said  mortgage 
cancelled,  or  a  receipt  thereon  signed  by  the  mortgagee,  or  his  exe- 
cutors, administrators  or  assigns,  to  enter  in  a  margin  to  be  left  for 
that  purpose  opposite  to  the  said  abstract,  a  minute  of  the  said  re- 
demption, payment  and  discharge  ;  which  minute  shall  be  a  full 
and  absolute  bar  and  discharge  of  the  said  entry,  registry  and 
mortgage."  And  they  then  contend  that  the  fact  of  the  possession 
and  cancellation  of  the  mortgage  is  not  to  be  taken  as  evidence  of 
the  legal  satisfaction  and  discharge  of  the  mortgage  ;  that  this  must 
still  be  proved  by  the  person  who  holds  the  priority  on  the  record, 
as  against  him  who  sets  up  and  claims  under  such  cancelled  instru- 
ment. I  do  not  consider  this  to  be  the  sound  construction  of  that 
act ;  and  it  appears  to  me  that  a  more  dangerous  one  could  not 
well  be  given  to  it.  Of  what  use  would  the  cancellation  of  the 
record  be,  if  the  mortgagee  might  at  any  time  afterwards  set  up 
the  cancelled  mortgage,  prove  its  original  existence  and  contents, 
and  then  call  upon  the  mortgagor  or  a  purchaser,  or  subsequent 
mortgage  or  judgment  creditor,  to  prove  the  fact  of  the  lawful  pay- 
ment and  satisfaction  of  the  mortgage. 

The  clerk  acts,  and  must  act,  upon  the  simple  production  of 
the  mortgage  with  the  seals  torn  off,  or*the  mortgagee's  receipt 
endorsed.  He  has  no  judicial  power  ;  he  is  not  required  to  ex- 
amine witnesses  as  to  the  fact  of  payment;  and  it  is  therefore 
true  that  the  simple  cancellation  is  not  an  absolute  bar  unless 
there  has  been  actual  satisfaction.  It  is  not  conclusive  evidence. 
The  facts  may  be  investigated  in  a  proper  way.  Nevertheless  it 
is  evidence,  and  evidence  too  of  a  very  high  character,  and  suffi- 
cient to  sustain  the  rights  of  all  persons  interested,  unless  the 
party  setting  up  the  cancelled  mortgage  shall  show  some  accident, 
mistake  or  fraud ;  and  this  must  be  shown  satisfactorily  on  his 
part.  If  not  so  shown,  the  cancellation  is  conclusive  proof  of  the 


JANUARY  TERM,  1831.  215 


Miller  and  Stiger  v.  Wack  et  al. 


payment,  more  especially  in  favor  of  third  persons,  who  have  a 
right  to  look  to  the  record  for  protection. 

But  it  is  said,  if  any  presumption  may  arise  from  the  fact  of  the 
mortgage  having  been  in  the  possession  of  the  mortgagor  and 
cancelled  by  him,  the  answer,  that  is  the  oath  of  the  party,  may 
be  received  to  repel  such  presumption,  and  to  prove  the  fraudulent 
manner  in  which  he  obtained  it.  This  does  but  bring  up  the  ques- 
tion already  discussed  in  another  shape.  If  the  answer  can  be  ad- 
mitted to  repel  the  strong  presumptive  evidence  arising  from  the 
cancellation  of  the  mortgage,  then  the  party's  own  oath  to  a  fact 
alleged  in  his  answer  not  responsive  to  the  bill,  will  be  made  evi- 
dence in  the  cause,  and  may  be  sufficient  to  support  his  claim. 
This,  I  think,  cannot  be. 

This  case  comes  before  the  court  at  this  time  on  an  order  for 
further  argument  as  to  the  expediency  of  directing  an  issue,  at  the 
request  of  Aaron  Ayres,  jun.,  one  of  the  said  defendants,  to  ascer- 
tain whether  the  mortgage  given  to  Jacob  Wack  and  Aaron  Ayres, 
was  or  was  not  cancelled  with  the  consent  of  the  said  mortgagees, 
or  one  of  them.  To  determine  this,  it  was  necessary  for  me  to 
look  into  the  whole  case ;  and  the  view  taken  of  it  renders  the 
expense  of  an  issue  unnecessary.  It  is  the  province  and  the  duty 
of  this  court,  to  decide  upon  the  facts  and  the  law,  except  in 
cases  of  real  difficulty,  growing  out  of  contradictory  testimony ; 
or  opposing  facts  and  circumstances,  which  it «is  impossible  for  the 
court  to  reconcile.  Then  the  issue  is  properly  directed,  to  inform 
the  conscience  of  the  court :  Le  Guen  v.  Gouverneur  &  Kemble, 
1  Johns.  Cases,  436  ;  6  Johns.  C.  R.  255.  I  consider  that  the 
defendants  in  this  case  have  failed  to  make  out  the  facts  neces- 
sary to  support  their  claim,  as  against  the  complainants;  and 
being  clearly  of  that  opinion,  I  do  not  feel  authorized  to  order  an 
issue. 

I  much  regret  the  necessity  which  impels  me  to  differ  from  the 
opinion  heretofore  delivered  in  this  cause.  If  a  decree  had  pass- 
ed in  conformity  with  that  opinion,  the  habitual  respect  I  have 
always  entertained  for  the  decisions  of  this  court,  would  have 
induced  me  to  hesitate  long,  before  I  could  have  been  brought  to 
disturb  it.  But  as  the  whole  case  is  open,  and  has  been  thrown 
upon  me,  I  must  pronounce,  though  with  great  diffidence,  my 


216  CASES  IN  CHANCERY. 

Stark  et  al.  v.  Hunton  et  al. 

own  judgment,  and  not  that  of  another.  And  under  these  circum- 
stances it  affords  me  pleasure,  that  if  the  law  is  not  now  correctly- 
dispensed,  there  is  another  and  higher  tribunal,  where  the  errors 
of  this  court  may  be  speedily  corrected,  and  the  law  of  the  land 
finally  settled.  .  * 

I  am  of 'opinion  that  the  complainant  is  entitled  to  a  decree  for 
the  amount  of  his  two  mortgages,  with  costs. 

CITED  in  Trenton  Banking  Co.  v.  Woodruff,  1  Gr.  Ch.  126, 130, 132;  Stevens,  Etfr, 
v.  Post,  1  Beas.  411 ;  Black  v.  Shreve,  2  Beas.  478;  Banta  v.  Vreeland,  2  McCar. 
107 ;  Freeholders  rf  Middlesex  v.  Thomas,  5  C.  E.  Gr.  42  ;  Harrison's  Adm'r  v. 
Johnson,  3  C.  E.  Gr.  429-434 ;  Dudley  v.  Bergen,  8  C.  E.  Gr.  400. 


STARK  ET  AL.  v.  HUNTON  ET  AL. 


At  common  law,  and  independent  of  our  statute,  it  is  a  settled  rule  at  this  day, 
that  express  words  of  exclusion  are  not  necessary  in  a  will  in  order  to  bar 
dower;  it  is  sufficient  if  there  be  a  manifest  and  unequivocal  intention. 

This  intent  must  be  so  plain  as  to  admit  of  no  reasonable  doubt.  The  claim  of 
dower  must  be  inconsistent  with  the  will,  or  so  repugnant  to  its  provisions  as 
to  disturb  and  defeat  them. 

If  the  intent  be  doubtful  or  ambiguous,  the  legal  title  of  the  widow  will  prevail. 

In  the  following  devise:  "I  give,  devise  and  bequeath  unto  my  wife  Jane  all  my 
tavern  house  and  lot  where  I  now  live,  together  with  all  the  furniture  and 
stock  in  the  same ;  to  have  and  to  hold  to  my  said  wife  Jane  during  her 
natural  life,  provided  she  remains  my  widow:  but  in  case  she  should  marry 
again,  then  it  is  my  will  that  my  said  tavern  house  and  lot  and  premises  be 
disposed  of  according  to  law:"  the  manifest  intent  of  the  testator  is,  that  it 
should  be. in  lieu  of  dower,  at  least  in  the  premises  so  devised. 

The  acts  of  the  widow  while  in  possession,  treating  the  property  as  her  own,  altering 
and  improving  the  property  to  enhance  the  annual  value,  leasing  it  out  for  a 
number  of  years,  reserving  rent  to  herself;  are  consistent  only  with  the  fact,  that 
she  considered  herself  as  holding  under  the  will,  and  amount  to  an  acceptance 
of  the  devise. 

The  widow  having  married  again,  her  estate  is  defeated ;  she  cannot  afterwards  claim 
her  dower,  and  the  devised  premises  must  go,  according  to  the  directions  of  the 
will,  to  those  lawfully  entitled ;  that  is,  to  the  children  of  the  testator,  and  those 
representing  them. 

The  object  of  the  statute  of  the  24th  February,  1820,  (Rev.  L.  677,)  was  to  compel  the 
widow,  in  all  cases  where  land  had  been  devised  to  her,  to  elect  between  the 
bounty  of  her  husband  and  her  legal  rights,  and  to  prevent  her  enjoying  both 
By  the  just  and  reasonable  construction  of  this  act  it  extends  to  all  lands  and 
real  estate  embraced  in  the  will  of  the  testator. 
The  intent  of  the  act  is,  that  the  widow  should  not  be  entitled  to  dower  in  anj 


JANUARY  TERM,  1831.  217 


Slark  et  al.  v.  Hunton  et  al. 


lands  devised  by  will,  where,  under  the   same  will,  she  took  an    interest 
in  land  or  real  estate  as  devisee. 

How   far   the   statute  may  apply  to  after  acquired  lands,  or  other  real   estate 
of  which  the  testator  may  be  considered  as  dying  intestate,  query. 


Benjamin  Weller,  late  of  Paterson,  in  the  county  of  Essex,  died 
in  June,  1823,  leaving  a  last  will  and  testament,  which  was  duly 
proved  by  Jane  Weller,  his  widow,  and  Philemon  Dickerson,  ex- 
ecutors in  the  said  will  named.  The  will  directed  that  all  debts 
and  expenses  should  be  paid  out  of  the  personal  estate,  and  such 
real  estate  as  was  for  that  purpose  designated  in  the  will.  Then 
followed  this  devise:  "  I  give,  devise  and  bequeath  unto  my  wife 
Jane,  all  my  tavern  house  and  lot  where  I  now  live,  together  with 
all  the  furniture  and  stock  in  the  same :  to  have  and  to  hold  to 
my  said  wife  Jane  during  her  natural  life,  provided  she  remains 
my  widow;  but  in  case  she  should  marry  again,  then  it  is  my  will 
that  my  said  tavern  house  and  lot  and  furniture  be  disposed  of 
according  to  law."  The  testator  left  several  children.  The  per- 
sonal property  and  the  real  estate,  except  what  was  given  to  the 
widow,  were  sold,  and  the  proceeds  applied  to  the  payment  of 
debts.  The  widow,  after  her  husband's  death,  remained  in  the 
tavern  house,  occupying  and  enjoying  it,  "together  with 'all  the 
furniture  and  stock  in  the  same,"  according  to  the  terms  of  the 
will.  She  converted  the  lower  part  of  the  tavern  house  into  stores, 
and  leased  them  for  five  years  to  sundry  persons,  reserving  rent  to 
herself,  to  the  amount  of  about  six  hundred  dollars.  In  November, 
1828,  -she  married  George  Hunton,  with  whom  she  lived  on  the 
premises  devised  to  her,  at  the  filing  of  the  bill.  The  complain- 
ants, some  of  whom  are  children,  and  other  representatives  of  chil- 
dren of  the  testator,  seek  to  have  the  will  established,  and  the  real 
estate  divided  or  sold,  that  each  one  entitled  may  enjoy  his  share. 

E.  Van  Arsdale,  jun.,  for  the  complainants.  The  only  ques- 
tions are,  as  to  the  devise  to  the  widow — whether  she  has  accepted 
the  devise,  and  whether  it  is  a  bar  to  her  claim  of  dower? 

1.  The  bill  charges  that  she  did  accept  it:  in  her  answer  she 
denies  that  she  accepted  it  in  lieu  of  dower,  or  that  her  keeping 
possession  of  the  premises  bars  her  dower.  An  acceptance  may 


218  CASES  IN  CHANCERY. 

Stark  et  al.  v.  Hunton  et  al. 

be  inferred  from  circumstances.:  3  Bro.  C.  C.  88  ;  1  Eden,  489;  1 
Swans.  R.  '382.  The  doctrine  of  election  applies  to  dower.  The 
acts  of  the  widow  amount  to  an  acceptance  of  the  devise.  She  has 
always,  since  her  husband's  death,  retained  possession  of  the  prop- 
erty and  furniture.  She  occupied  it  several  years  as  a  tavern  and 
boarding  house,  then  made  alterations  in  the  property,  rented  out 
the  house,  and  had  the  lower  part  converted  into  stores,  which  she 
had  rented  to  four  different  persons,  at  an  annual  rent  of  near  six 
hundred  dollars.  The  leases  are  made  by  her  individually,  and 
rents  reserved  to  her,  and  she  has  received  the  rent  until  she  was 
injoined.  She  appeared  to  be  acting  for  herself,  and  much  to  her. 
own  interest.  It  is  too  late  for  her  now  to  say  she  has  not  accepted 
the  devise. 

2.  Was  this  devise  intended  to  be  in  lieu  of  dower  ? — There  are 
no  express  words  to  this  effect  in  the  will.  The  property  is  given  to 
her  during  widowhood.  No  express  words  are  necessary  in  a  will 
to  bar  dower  :  it  depends  oh  the  intention  of  the  testator  aud  cir- 
cumstances of  the  case:  2  Scho.  and  Lef.  449;  2  Mad.  C.  P.  57. 
The  testator  had  but  a  small  real  estate  beside  what  he  devised  to 
the  widow,  and  that  he  ordered  to  be  sold  for  the  payment  of  debts; 
this  shows  that  he  did  not  intend  his  wife  to  have  dower.  His 
other  property  was  not  sufficient  to  pay  the  debts.  He  gave  his 
wife  all  the  furniture,  which  was  the  greatest  part  of  the  personal 
estate.  In  short,  he  gave  her  all  his  property  left,  after  paying  tBe 
debts,  during  widowhood.  He  could  not  have  intended  her  to  have 
dower  too.  I  conclude,  therefore,  that  the  intention  is  manifest  on 
the  face  of  the  will,  that  the  property  devised  to  her  should  be  iu 
lieu  and  in  bar  of  dower. 

But  if.  she  is  entitled  to  any  dower  at  all,  she  cannot  claim 
dower  in  the  tavern  house  devised  to  her.  She  cannot  take  the 
same  property  in  two  capacities :  2  Eden,  256.  She  cannot 
take  as  devisee  and  dowress  under  the  same  will :  2  Mad.  C.  48; 
1  Swanst.  R.  370.  She  could  not,  before  her  second  marriage, 
have  held  two  thirds  of  the  tavern  house  as  devisee,  and  the  other 
one  third  as  dowress :  Coop.  R.  C.  320.  By  electing  to  take  as 
devisee,  she  forfeits  her  right  as  dowress.  I  contend  that  she  did 
elect  to  take  as  devisee :  1  Swanst.  394,  n. ;  2  Scho.  and  Lef. 
444.  And  having  accepted  the  devise,  she  cannot  now  renounce 


JANUARY  TERM,  1831.  219 

Stark  et  al.  v.  Hunton  et  al. 

it  and  say  she  will  have  her  dower;  it  is  too  late:  1  Swanst.  R. 
372 ;  3  Atk.  607. 

3.  But  if  there  is  any  doubt  upon  common  law  principles,  I 
think  the  question  is  settled  by  our  statute,  Rev.  L.  677,  s.  1  ; 
which  enacts,  that  a  devise  of  real  estate  to  the  wife  is  a  bar  to 
dower,  unless  she  dissents,  in  writing,  in  a  limited  time:  she  has 
not  done  so  in  this  case.  Upon  her  second  marriage  the  property 
was  to  be  disposed  of  according  to  law.  I  take  this  to  mean,  it 
should  go  to  his  children  as  they  might  be  entitled. 

P.  Dickerson,  for  the  defendant.  Weller  died  in  1823,  leav- 
ing seven  children.  The  wife  retained  possession  of  the  premises 
and  kept  the  family  together.  The  leases  made  by  her  were  for 
her  own  use.  After  the  marriage,  the  executor  sold  the  personal 
property,  which  she  had  forfeited  by  the  marriage  ;  and  the  ques- 
tion is,  whether  she  is  entitled  to  dower  in  the  real  estate,  or  any 
part  of  it.  We  contend  she  is  entitled  to  dower  at  common  law. 
The  general  doctrine  is,  where  a  devise  is  made  to  a  widow,  she 
will  also  be  entitled  to  her  dower,  unless  the  holding  both  will  be 
inconsistent.  Her  right  of  dower  is  independent  of  her  husband  ; 
if  he  gives  her  any  thing  it  will  be  considered  additional.  The 
doctrine  of  election  cannot  apply,  except  where  both  cannot  be 
held.  This  is  not  such  a  case.  She  had  a  right  to  hold  the  pos- 
session precisely  as  she  did,  as  a  dowress,  ^until  dower  was  as- 
signed her.  If  our  statute  did  not  exist,  there  could  be  no  ques- 
tion in  this  case:  she  would  be  entitled  to  dower.  We  contend, 
that  our  statute  only  applies  to  cases  where  there  is  a  devise  over, 
upon  the  second  marriage  of  the  widow.  In  this  case,  there  is  no 
devise  over  :  it  is  not  within  the  statute.  The  statute  can  have  no 
effect  upon  the  construction  of  this  will. 

The  intention  of  the  testator,  that  she  should  at  all  events 
have  her  dower  in  this  property,  is  manifest  upon  the  face  of  the 
will.  He  gives  the  property  to  her  during  widowhood  :  he  could 
not  have  intended  to  strip  her  of  all  property  upon  her  second 
marriage.  She  had  all  the  children  to  bring  up  and  educate,  and 
therefore  he  intended  to  make  a  liberal  provision  for  her.  It  is  a 
sound  rule  of  construction,  that  effect  is  to  be  given  to  every  part 
of  an  instrument ;  but  by  the  construction  contended  for  on  the 


220  CASES  IN  CHANCERY. 

Stark  et  al.  v.  Hunton  et  al. 

other  side,  the  last  clause  of  the  will  must  be  rendered  useless,  or 
its  meaning  perverted.  Why  were  the  words  "  to  be  disposed  of 
according  to  law,"  inserted,  unless  something  definite  was  meant  ? 
And  what  is  the  import  of  those  words?  The  obvious  meaning 
of  this  clause  is,  that  upon  her  second  marriage  the  provision  of 
the  will  should  cease  to  operate  upon  this  property ;  that  it  should 
be  disposed  of,  not  according  to  the  will,  but  according  to  law  in 
case  no  disposition  by  will  had  been  made,  or  he  had  died  intes- 
tate :  that  is,  one  third  to  the  widow,  and  the  other  two  thirds  to 
the  children.  The  testator  intended,  that  in  case  she  married,  she 
should  still  have  what  the  law  would  have  given  her,  her  dower  in 
the  premises,  and  if  she  did  not,  that  she  should  have  the  whole 
property. 

I.  H.  Williamson,  for  defendants.  The  general  principle  is, 
that  the  widow  is  always  entitled  to  both  the  property  devised  and 
her  dower,  unless  precluded  by  express' words,  or  manifest  inten- 
tion. It  is  not  necessary  that  it  should  appear  that  both  were  in- 
tended. If  there  is  any  ambiguity,  or  want  of  evidence  of  intent, 
the  rule  is  in  favor  of  the  widow. 

It  was  at  one  time  held,  that  to  bar  dower  express  words  were 
necessary :  2  Ves.  jr.  580 ;  2  Dick.  835.  Since  that  time  it  has 
been  held,  that  express  words  are  not  necessary ;  but  the  inten- 
tion must  be  clear  and  undoubted,  or  else  the  widow  takes  dower. 
The  two  claims  must  be  clearly  inconsistent,  so  that  she  cannot 
take  both  without  defeating  some  part  of  the  will.  The  case  in 
2  Scho.  and  Lcf.  444,  recognizes  these  principles,  and  shows  what 
is  meant  by  clear  and  manifest  implication  or  intention.  It  must 
be  beyond  doubt  :  if  there  be  doubt  or  ambiguity  the  widow  shall 
have  dower.  She  was  excluded  in  that  case  because  the  devise  was 
repugnant  to  her  claim  of  dower.  In  French  v.  Davis ,  2  Ves.  jr. 
572,  the  question  was,  whether  the  will  was  inconsistent  and  irrec- 
oncilable with  the  claim  of  dower.  In  the  case  before  the  court, 
there  is  nothing  in  the  will  to  manifest  the  intention  of  the  testator 
that  the  wife  should  be  deprived  of  dower. 

The  widow  is  not  barred  of  her  dower  because  she  has  had 
part  of  the  estate  devised  to  her,  or  because  the  other  part  of  the 
estate  is  devised  to  others.  The  devise  to  others  is  always  taken 


JANUARY  TERM,  1831.  221 


Stark  et  al.  v.  Hunton  et  al. 


subject  to  incumbrances,  of  which  dower  is  one.  Nor  is  she  bar- 
red because  the  land  devised  to  her  is  more  valuable  than  her 
dower :  8  Vin.  Ab.  tit.  Devise,  366,  pi  45 ;  2  Eq.  Ca.  Ab.  353, 
Lemon  v.  Lemon  ;  Prec.  in  Oh.  133,  Hitchin  v.  Hitchin;  2  Atlc. 
427.  These  cases  govern  the  one  now  before  the  court. 

The  widow  may  claim  by  two  titles;  one  third  as  dowress,  and 
two  thirds  as  devisee:  her  doing  so  is  not  inconsistent  with  the 
will :  Rop.  on  H.  and  wife,  559. 

This  is  not  a  case  of  election.  Independent  of  the  statute,  there 
are  cases  where  the  widow  may  be  put  to  elect ;  but  to  establish 
an  election,  it  must  be  shown  that  she  intended  to  make  her  elec- 
tion, and  that  she  understood  her  rights:  neither  of  which  appear. 
Without  intention  there  can  be  no  election,  and  the  widow  is  not 
bound  to  elect  until  the  situation  of  the  estate  is  known,  and  she 
is  able  to  determine  which  is  most  beneficial  for  her.  The  right 
of  election  may  continue  till  the  whole  estate  is  wound  up  and 
closed,  if  it  was  fifty  years  :  Wake  v.  Wake,  I  Ves.  jr.  335  ;  3  Bro. 
C.  C.  255.  Acts  done  in  ignorance,  do  not  amount  to  an  election, 
nor  acts  of  mere  ownership,  consistent  with  her  claim  either  as 
dowress  or  devisee.  .  On  general  principles,  the  widow  would  be 
clearly  entitled  to  dower. 

If  there  is  any  doubt  in  the  case,  it  arises  on  the  statute.  "What 
is  the  true  construction  of  this  act?  We  contend  that  it  operates 
only  in  favor  of  devisees ;  that  it  extends  <5nly  to  lands  devised 
to  other  persons,  or  devised  over,  after  the  interest  of  the  widow 
ceases.  The  widow  may  recover  against  purchasers,  her  dower 
in  lands  conveyed  by  the  husband.  The  statute  extends  only  to 
lands  devised  by  the  husband.  Suppose  the  husband  dies  intes- 
tate as  to  part  of  his  real  estate,  is  the  widow  barred  of  her  dow- 
er in  these  lands  ?  Now  we  insist,  that  as  to  the  property  in 
question  here,  the  husband  died  intestate ;  that  the  claim  of  the 
children  is  as  heirs  at  law,  and  not  as  devisees.  The  court  are 
called  on  to  extend  the  construction  of  this  act,  or  this  case  can- 
not be  brought  within  it.  This  estate  is  not  devised  over  after  the 
marriage :  the  language  of  the  will  is,  that  the  property  is  to  be 
disposed  of  according  to  law.  What  law,  but  the  law  disposing 
of  the  real  estate  of  persons  dying  intestate?  And  does  not  the 
law  provide  for  the  widow  as  well  as  the  children?  Can  the  chil- 


222  CASES  IN  CHANCERY. 


Stark  et  al.  v.  Hunton  et  al. 


dren  claim  as  devisees?  There  is  no  devise  to  them.  Must  they 
not  claim  as  heirs  at  law  ?  Does  not  this  very  clause  confirm  and 
make  manifest  the  claim  of  the  widow?  She  claims  according 
to  law,  as  well  as  the  heirs.  Her  right  is  equal  to  theirs :  both 
are  legal  rights,  and  together  cover  the  whole  estate.  But  it  is 
said  that  there  has  been  a  forfeiture.  Whence  this  idea  ?  A 
forfeiture  can  only  arise  from  an  unlawful  act,  as  committing 
waste,  &c.  The  determination  of  the  estate  here  was  on  the 
occurrence  of  a  particular  event,  which  the  policy  of  the  law  does 
not,  and  the  husband  had  no  right  to  prohibit.  The  mean- 
ing of  the  will  is,  that  in  case  of  a  second  marriage  the  hus- 
band's bounty  should  be  withdrawn;  but  the  legal  rights  re- 
main. After  that  event,  the  law,  and  not  the  will,  was  to  regu- 
late the  rights  of  all  parties  interested.  We  insist,  the  widow  is 
entitled  to  dower.  The  bill  is  for  an  account  of  the  personal 
estate,  and  also  the  rents  and  profits  of  the  real  estate  since  the 
marriage.  We  insist,  the  widow  is  not  bound  to  account  for  the 
rents  and  profits.  As  dowress,  she  was  entitled  to  retain  the 
possession,  and  to  receive  the  rents  and  profits  of  this  property 
until  dower  assigned  her:  Rev.  L.  397.  She  did  not  receive 
the  rents  and  profits  of  the  two  thirds,  as  receiver  for  the  children. 
If,  however,  she  is  accountable,  she  is  entitled  to  allowance  for 
maintaining  the  children. 

Th.  Frelinghuysen,  in  reply.  We  insist,  1.  That  the  widow 
is  not  entitled  to  dower  at  common  law :  2.  That  there  is 
nothing  in  the  will  to  save  her  right;  and,  3.  That  the  statute  is 
a  bar.  It  is  to  be  observed  that  the  whole  of  the  real  estate,  ex- 
cept the  tavern  house  in  question,  has  gone  for  the  payment  of 
debts.  All  our  inquiries  are  as  to  this  one  devise.  It  is  admitted 
that  no  express  words  are  necessary  in  the  will  to  bar  dower ; 
that  a  manifest  intent  is  sufficient,  and  that  it  may  be  inferred 
from  circumstances.  In  the  time  of  Lord  Camden,  he  was 
struck  with  the  inconsistency  of  contrary  claims  by  the  widow. 
It  is  said  that,  on  this  point,  Ld.  Camden  has  been  overruled. 
The  subject  has  been  equitized  on,  by  Mr.  Koper  and  others. 
They  have  drawn  distinctions  between  a  real  and  a  mixed  fund, 
that  have  gone  to  destroy  principle.  The  case  in  2  Ves.  jr.  572, 


JANUARY  TERM,  1831.  223 

Stark  et  al.  v.  Hunton  et  al. 

is  sui  generis,  arising  out  of  particular  circumstances,  and  not  a 
safe  precedent.  Ld.  Redesdale  lays  down  the  safe  rule  in  2  Sch. 
and.Lef.449. 

Can  any  one  doubt  as  to  the  intention  of  the  testator?  He 
intended  his  wife  should  take  under  the  will,  and  according  to 
the  will,  not  part  as  dowress  and  part  as  devisee.  She  cannot 
d;  an  act  under  the  devisee  without  conflicting  with  her  dower 
right.  We  find  her  leasing  and  receiving  rent.  Suppose  she  now 
undertakes  to  assert  her  dower  right  in  these  very  premises,  and 
institutes  a  suit,  in  what  situation  would  she  stand  ?  We  con- 
tend, that  the  right  she  acquired  under  the  will  has  been  accept- 
ed and  enjoyed  by  her ;  and  she  cannot  now  come  back  and 
claim  her  dower.  She  has  elected,  and  is  bound  by  it.  Here 
we  are  met  by  general  principles,  without  any  particular  case 
to  sustain  them.  The  case  in  Swanst.  R.  shows  what  will 
amount  to  an  acceptance  of  the  devise.  Will  ignorance  avail  her? 
Did  she  not  know  the  nature  of  the  property  ?  Every  widow 
knows  that  she  is  entitled  to  dower  in  the  lands  of  her  husband. 
She  could  not  have  been  ignorant  of  this,  or  of  the  extent  of  the 
devise.  The  dower  was  one  third,  the  devise  was  of  the  whole 
property.  She  had  only  to  choose  between  one  third  and  the 
whole.  We  say  she  has  done  so,  and  is  to  be  fixed  with  the 
election  ;  that  this  is  to  be  inferred  from  the  circumstances. 

There  is  nothing  in  the  will  to  save  he£  right  upon  second 
marriage.  The  property  was  given  to  her  during  widowhood. 
She  has  by  her  own  act  defeated  the  devise  to  her.  The  testator 
intended,  no  doubt,  that  his  wife  should  have  an  inducement  to 
remain  single  and  bring  up  the  family,  and  not  bring  a  stranger 
to  their  government.  He  did  not  intend,  that  if  she  would  mar- 
ry, and  relinquish  the  bounty,  she  should  come  in  as  dowress 
and  take  one  third  of  the  land  ;  for  the  property,  in  case  of  mar- 
riage, was  to  be  disposed  of  according  to  the  laiv  of  the  case. 
.  But  what  does  the  law  of  the  land  say  ?  Our  statute  of  1820, 
intended  to  bar,  unless  the  wife  dissents,  in  all  cases.  Now  we 
admit  there  is  a  chasm  in  the  statute,  as  to  after  acquired  lands; 
but  where  the  will  covers  the  whole  estate,  there  the  statute  is 
peremptory.  The  statute  says,  the  wife  shall  not  be  entitled  to 
dower  in  any  lands  or  real  estate  devised  by  her  said  husband, 


224  CASES  IX  CHAXCERY. 

Stark  et  al.  v.  Hunton  et  al. 

unless  she  expresses  her  dissent  in  writing,  &c.  Can  we  suppose 
that  the  legislature  intended  to  bar  her  dower  in  other  lands,  and 
jet  leave  her  dower  in  the  lands  devised  to  her  f  This  land 
was  devised  to  her,  and  is  therefore  precisely  within  the  statute. 
She  takes  the  equivalent  intended  by  the  legislature,  and  yet  it  is 
said  that  now  she  may  take  the  dower  itself.  I  submit  that  the 
wife  is  not  entitled  to  dower. 

As  to  the  rents  and  profits,  she  must  account  for  them  from 
the  marriage.  By  the  statute,  the  widow  is  to  remain  in  and 
enjoy  the  property  until  dower  assigned ;  but  it  does  not  in  that 
case,  mean  that  she  is  to  alter  the  property  and  change  its  nature 
and  character.  In  doing  this  the  court  may  assume  she  was  a 
trespasser,  her  acts  are  waste,  and  in  strictness  she  has  forfeited  all 
right  to  dower.  She  is  accountable  on  any  ground  from  the  time 
of  her  marriage.  As  to  compensation  for  bringing  up  the  chil- 
dren, it  ought  not  to  be  allowed  ;  guardians  should  have  been 
appointed  ;  the  widow  should  not  be  permitted  to  swallow  up  the 
inheritance  in  this  way. 

THE  CHANCELLOR.  The  important  inquiry  iu  the  case  is, 
whether  the  former  widow,  now  Mrs.  Hunton,  is  entitled  to 
dower  in  the  tavern  house  and  lot  devised  to  her  by  the  will  of 
her  former  husband,  Benjamin  Weller. 

On  the  part  of  the  complainants  it  is  insisted,  that  the  devise 
in  the  will  was  intended  to  be  in  lieu  of  dower,  and  was  accepted 
by  the  widow ;  and  that  having  by  her  second  marriage  forfeited 
the  bounty  of  her  first  husband,  she  cannot  now  turn  round  and 
claim  dower  in  the  very  property  which  she  took  and  held  as  a 
devisee  under  the  will.  While  on  the  other  hand,  the  converse  of 
these  propositions  is  contended  for  as  true,  on  the  part  of  the  de- 
fendants. 

Considering  this  case  as  at  common  law,  and  independent  of 
our  statute,  the  two  questions  that  present  themselves  are,  1.  Did 
the  testator  intend  the  devise  to  be  in  lieu  of  dower?  and,  2.  Did 
the  widow  accept  of  the  devise? 

Notwithstanding  some  cases  to  the  contrary,  I  think  it  may  be 
laid  down  as  a  settled  rule  at  the  present  day,  that  express  words 
of  exclusion  are  not  necessary  in  a  will,  in  order  to  bar  dower.  It 


JANUARY  TERM,  1831.  225^ 

Stark  et  al.  v.  Himton  et  al. 

is  sufficient  if  there  be  a  manifest  and  unequivocal  intention.  This 
intention-  must  be  so  plain  as  to  admit  of  no  reasonable  doubt.  If 
it  be  doubtful  or  ambiguous,  the  legal  right  of  the  widow  will  pre- 
vail. See  the  case  of  Birmingham  v.  Kirwan,  2  Sch.  and  Lef.  444, 
and  the  authorities  there  cited. 

Where  there  are  no  express  words  of  exclusion,  as  in  the  case 
now  before  the  court,  the  intention  of  the  testator  is  to  be  gathered 
from  circumstances.  No  general  rule  can  be  adopted  which  will 
properly  or  safely  apply  to  the  great  variety  of  cases  that  are  from 
time  to  time  occurring  in  the  community.  That  which  approaches 
nearest  to  such  rule,  is  the  principle  already  adverted  to,  that  the 
intention  must  be  so  plain  as  not  to  admit  of  reasonable  doubt. 
The  claim  of  dower  must  be  inconsistent  with  the  will,  or  so  re- 
pugnant to  its  provisions  as  to  disturb  and  defeat  them.  This 
principle  runs  through  all  the  cases,  from  that  of  Lawrence  v. 
Lawrence,  2  Vern.  365,  to  the  latest  of  the  English  decisions,  and 
has  been  adopted  by  the  most  learned  judicial  tribunals  of  our 
country.  To  review  the  authorities  in  detail  is  not  necessary  for 
my  present  purpose,  and  might  well  be  looked  on  as  an  affectation 
of  learning.  They  were  lately  reviewed  with  great  clearness  by 
Chancellor  Kent,  in  the  case  of  Adsit  v.  Adsit,  4  Johns.  C.  R. 
448.  The  result  from  the  whole  was,  that  where  there  are  no 
express  words  of  exclusion,  the  intention  to  exclude  must  be  be- 
yond reasonable  doubt.  And  in  a  late  work,  coming  over  the 
subject  of  dower,  the  same  principle  is  recognized  :  4  Kent's  Com. 
57. 

The  question  then  recurs,  Did  the  testator  intend  the  devise  -to 
be  in  lieu  of  dower,  in  the  premises  thus  devised  to  his  wife? 

The  provisions  of  the  will  are  very  brief  and  simple.  He  ap- 
propriates all  his  real  and  personal  property,  save  the  taveru 
house  with  the  furniture  and  stock  belonging  to  it,  to  the  pay- 
ment of  debts.  The  tavern  house  with  the  furniture  and  stock 
he  gives  to  his  wife  during  her  natural  life,  provided  she  remains 
his  widow.  Or  in  other  words,  he  gives  to  her  all  his  clear  estate- 
after  the  payment  of  debts,  subject  to  be  defeated  by  her  subse- 
quent marriage.  He  left  five  children,  all  under  age — the 
youngest  an  infant.  It  would  seem  that  he  placed  great  confi- 
dence in  his  wife,  who  was  the  mother  of  those  children.  He 

p 


226  CASES  IN  CHANCERY. 

Stark  et  al.  v.  Hunton  et  al. 

placed  under  her  exclusive  control  all  his  earthly  substance,  relying 
on  her  affection  and  prudence  to  take  care  of  and  deal  justly  with 
their  common  offspring.  He  seems  to  have  anticipated  the  future 
marriage  of  his  wife  as  an  event  rather  possible  than  probable ; 
and  provides  (hat  in  case  she  should  marry,  the  devise  should  be 
considered  at  an  end,  and  the  property  be  disposed  of  according  to 
law. 

I  think  the  manifest  intention  of  the  testator  was,  that  the  de- 
vise to  the  wife  should  be  in  lieu  of  her  dower,  at  least  in  the 
premises  thus  devised.  He  never  intended  that  she  should  hold 
one  third  part  of  this  tavern  house  as  dowress,  and  the  remaining 
two  thirds  as  devisee.  It  was  one  property,  not  susceptible  of 
convenient  division.  The  devise  was  of  the  whole ;  and  the  ob- 
ject was  one  entire  object,  the  benefit  of  his  wife  and  children. 
Some  of  the  English  cases  have  been  liberal  in  support  of  the 
widow's  claim  for  dower ;  but  I  do  not  find  one  that  goes  so  far 
as  to  maintain,  that  where  certain  property  is  given  to  a  wife, 
during  her  widowhood,  that  she  is  also  entitled  to  claim  dower 
out  of  that  same  property.  The  two  claims  are  inconsistent,  and 
cannot  stand  together.  In  the  case  before  the  court,  the  devise 
to  the  wife  is  different  in  its  nature  and  consequences  from  her 
legal  right  to  dower;  and  I  do  not  see  how  the  two  claims  could 
be  exercised  as  to  the  same  property,  at  one  and  the  same  time. 
In  the  case  of  Birmingham  v.  Kirwan,  already  cited,  Ld. 
Redesdale  ruled  that  a  devise  to  the  wife  for  life  of  certain  lands 
and  a  house,  with  directions  to  keep  it  in  repair,  was  inconsistent 
with  the  assertion  of  a  right  of  dower  in  the  same  lands;  and 
she  \vas  accordingly  put  to  her  election.  And  the  same  doctrine 
is  held  by  Sir  Thomas  Plumer,  the  vice  chancellor  of  England, 
in  the  later  case  of  Dorchester  v.  Effingham,  Coop.  Eq.  Rep. 
319.  On  this  question,  whether  where  the  whole  of  the  lauds 
are  devised  to  the  wife,  she  may  take  t\vo  thirds  of  them  as  a 
devisee  under  the  will,  and  the  remaining  one  third  under  her 
title  to  dower,  there  are  some  ingenious  remarks  in  1  Roper  on 
Husband  and  Wife,,  561 ;  and  the  author  seems  to  conclude 
that  the  wife  may  take  in  both  capacities  in  the  same  property. 
But  I  am  not  satisfied  with  the  reasoning  of  the  author.  The 
policy  of  the  great  mass  of  the  English  cases  appears  to  have 


JANUARY  TERM,  1831.  227 


Stark  et  al.  v.  Hunlon  et  al. 


been,  to  save  the  dower  of  the  widow  if  possible ;  and  for  this 
purpose,-  numberless  refinements  and  distinctions  have  been  re- 
sorted to  by  the  courts.  Our  policy,  as  manifested  by  our  sta- 
tute, is  different;  and  I  am  not  disposed  to  run  counter  to  it,  and 
give  to  this  will  a  construction  which  I  think  it  will  not  justly 
bear. 

2.  Upon  the  question  of  acceptance,  I  incline  to  think  that 
the  case  is  with  the  complainants.  The  widow  has  treated  the 
property  as  her  own  in  every  respect.  She  has  altered  and  im- 
proved it.  She  has  leased  it  out  for  several  years,  to  a  num- 
ber of  persons,  reserving  rent  to  herself.  She  has  advisedly 
taken  measures  to  enhance  the  annual  value  of  the  property, 
evidently  for  her  own  benefit.  I  should  consider  this  an  accept- 
ance of  the  provision  under  the  will  and  according  to  the  terms 
of  the  will,  and  binding  upon  the  widow,  unless  it  could  be 
shown  that  she  had  mistaken  her  rights,  or  was  not  properly 
apprised  of  them.  There  is  nothing  in  the  case  to  induce  such 
a  belief.  The  idea  thrown  out,  that  as  widow  she  was  entitled 
to  remain  in  the  mansion  house,  free  of  rent,  until  dower  was 
assigned  her,  and  that,  in  favor  em  dotis,  she  may  be  consider- 
ed as  remaining  in  under  that  provision  of  our  statute,  and  not 
as  taking  under  the  will,  cannot  be  entertained.  Her  acts  while 
in  possession  were  directly  repugnant  to  such  a  pretension,  and 
are  consistent  only  with  the  fact,  that  she  "considered  herself  as 
holding  under  the  will,  and  therefore,  the  property  as  her  own 
freehold. 

Looking  at  this  case,  therefore,  on  common  law  principles 
merely,  I  am  of  opinion  that  it  was  plainly  the  intention  of  the 
testator  to  exclude  the  widow  from  dower  in  the  premises;  and 
that  the  devise,  intended  to  be  in  lieu  of  dower,  was  accepted  by  the 
widow  in  conformity  with  such  intention  ;  and  that,  having  de- 
feated her  own  rights  by  the  subsequent  marriage,  she  cannot 
now  claim  her  dower;  and  consequently,  that  the  property  will 
go  over,  according  to  the  directions  of  the  will,  to  those  who  are 
lawfully  entitled — by  which,  I  understand,  the  children  of  the 
testator,  or  those  representing  them. 

But  there  is  another  view  of  this  case,  which  it  is  important  to 
consider.  The  difficulties  experienced  by  our  courts  of  justice  in 


228  CASES  IN  CHANCERY. 

Stark  et  al.  v.  Hunton  et  al. 

the  construction  of  wills,  and  in  ascertaining  and  settling  the 
rights  of  parties,  where  the  widow  claimed  as  devisee  and  dow- 
ress,  and  the  increasing  uncertainties  consequent  thereupon,  in- 
duced the  legislature  to  interpose,  and  establish  some  plain  rule, 
which  might  be  not  only  simple  in  its  terms,  but  definite  in  its 
results.  By  the  act  of  24th  February,  1820,  entitled,  a  supple- 
ment to  the  act  relative  to  dower,  it  is  enacted,  "  that  if  a  hus- 
band shall  hereafter  devise  to  his  wife,  by  a  will  duly  executed  to 
pass  real  estate,  any  lands  or  real  estate,  for  her  life  or  otherwise, 
and  without  expressing  whether  such  devise  to  her  is  intended  to 
be  in  lieu  or  bar  of  dower,  or  not,  and  the  said  wife  shall  survive 
her  said  husband,  that  then  the  said  wife  so  surviving,  shall  not 
be  entitled  to  dower  in  any  lands  or  real  estate  devised  by  her 
said  husband,  unless  she  shall  in  writing  express  her  dissent  to 
receive  the  lands  or  real  estate  so  devised  to  her,  in  satisfaction 
and  bar  of  her  right  of  dower  in  the  other  lands  and  real  estate 
devised  in  and  by  the  said  will,  and  file^  the  same  with  the  surro- 
gate of  the  county  wherein  she  resides,  or  in  which  the  lands  or 
real  estate  devised  to  her  shall  be  situated,  within  six  months  af- 
ter the  probate  of  the  said  will ;  and  then  and  in  that  case  she 
shall  be  considered  as  renouncing  the  benefit  of  the  said  devise  to 
her." 

It  is  admitted  that  if  this  case  fall  within  the  provisions  of  this 
statute,  the  question  is  at  an  end  ;  for  it  is  not  pretended  that  any 
dissent  in  writing  was  filed  by  the  widow,  pursuant  ( to  the 
act.  The  statute  is  not  free  from  ambiguities,  nor  is  it  as  exten- 
sive in  its  application  as  was,  perhaps,  originally  intended  :  but 
it  appears  to  the  court  to  admit  of  a  just  and  rational  construc- 
tion, and  that  in  such  construction  the  present  cas0  is  fairly  em- 
braced. The  evil  that  existed  was  one  generally  understood,  and 
has  already  been  adverted  to.  The  object  of  the  statute  was  to 
remedy  the  evil,  and  to  compel  the  widow,  in  all  cases  where  any 
lands  or  real  estate  had  been  devised  to  her,  to  elect  between  the 
bounty  of  her  husband  and  her  legal  rights,  and  to  prevent  her 
from  enjoying  both  ;  and  I  am  of  opinion  that  the  object  of  the 
statute  is  fully  answered,  so  far  as  it  concerns  all  lands  and  real 
estate  embraced  in  the  will  of  a  testator.  How  far  the  statute 
may  apply  to  after  acquired  lands,  or  other  real  estate,  of  which 


JANUARY  TERM,  1831.  229 


Stark  et  al.  v.  Hunton  et  al. 


the  testator  may  be  considered  as  dying  intestate,  may  be  a  ques- 
tion :.  but  that  question  cannot  arise  here  ;  for  the  whole  real  pro- 
perty is  devised,  either  to  the  wife  or  to  the  executors  for  the  pay- 
ment of  debts. 

It  was  argued,  that,  from  the  terms  of  the  act,  it  was  intended 
to  operate  only  in  favor  of  devisees  of  "  other  lands  and  real 
estate  devised  in  and  by  the  said  will  ;"  and  that  it  was  not  in- 
tended to  bar  the  dower  in  the  lands  devised  to  the  widow  herself; 
or  at  all  events  that  the  act  does  not  necessarily  call  for  such  a 
construction  ;  and  that  it  should  be  construed  strictly,  inasmuch 
as  it  goes  to  take  away  a  legal  right.  But  the  act  not  only  uses 
the  expression  "other  lands  and  real  estate  devised  in  and  by  said 
will,"  but  it  expressly  says,  that  the  widow  shall  not  be  entitled 
to  dower  in  any  lands  or  real  estate  devised  by  her  said  husband, 
"  unless  she  shall  dissent  in  writing  as  aforesaid."  There  is  cer- 
tainly an  ambiguity  in  the  act;  but  taking  the  whole  together,  I 
think  the  intention  of  the  legislature  is  manifest,  that  the  widow 
should  not  be  entitled  to  her  dower  in  any  of  the  lands  devised  by 
a  will,  where,  under  the  same  will,  she  took  an  interest  in  lands 
or  real  estate  as  a  devisee ;  and  such  a  construction  appears  to  me 
to  comport  best  with  the  words  of  the  act.  I  am  therefore  of  opin- 
ion that,  under  the  provisions  of  our  statute,  the  defendant,  Mrs. 
Hunton,  can  have  no  claim  for  dower  in  the  lands  devised  to  her, 
and  which  she  has  lost  by  her  second  marriage! 

Plunton  and  wife  must  account  for  the  rents  and  profits  since  the 
marriage,  and  an  allowance  must  be  made  to  them  for  the  mainte- 

O     / 

nance  of  the  children  during  the  same  period.  Let  such  an  account 
be  taken,  together  with  a  general  account  of  the  debts  and  credits 
of  the  estate,  if  need  be,  and  let  report  be  made  by  the  master  as 
to  the  practicability  of  making  partition  of  the  property  among 
those  lawfully  entitled.  The  question  of  cos^ts,  and  all  further 
directions,  are  reserved. 

CITED  in  Norris  v.  Clark,  2  Stor.kt.  54;  English  v.  Ex'rs  of  English,  2  Gr.  Ch. 
509 ;  Bruen  v.  Brogaw,  3  Gr.  Ch.  265 ;  Colgate's  Ex'rs  v.  Colgate,  6  C.  E.  Or. 
380;  White  v.  White,  1  Harr.  202;  Van  Arsdale  v.  Van  Arsdale,  2  Dutch.  418. 


230  CASES  IN  CHANCERY. 

Camraann  v.  Ex'r  of  Traphagan. 


AUGUSTUS  F.  CAMMANN  v.  DAVID  P.  TRAPHAGAN,  EXECUTOR 
OF  HENRY  D.  TRAPHAGAN. 


[Same  case  ante,  28.] 

Upon  a  bill  filed,  and  injunction  allowed,  to  restrain  proceedings  at  law,  and  a 
plea  of  a  judgment  recovered  ;  upon  which  issue  was  joined  and  proofs  taken 
in  support  of  the  plea: — The  facts  of  the  plea  appearing  to  be  proved,  the 
injunction  was  dissolved,  and  the  bill  dismissed  with  costs. 

Although  in  the  record  of  a  judgment  adduced  in  support  of  a  plea,  it  appears 
that  there  wa*  a  verdict  and  judgment  rendered  upon  the  trial  of  an  issue 
in  fact,  without  an  issue  at  law,  upon  demurrer  joined  in  the  case  being  dis- 
posed of,  and  that  there  was  a  blank  left  in  the  judgment  for  the  amount  of 
the  taxed  costs: — These  errors  and  irregularities  are  to  be  corrected  in  some 
direct  proceeding,  and  are  not  subject  to  exception  when  the  proceed ii>gs  are 
collaterally  drawn  in  question. 

Upon  dissolving  the  injunction  and  dismissing  the  bill ;  the  costs  ordered  to  be 
paid  out  of  the  moneys  deposited  in  court,  and  the  remainder  of  the  deposit 
ordered  to  be  paid  to  the  defendant  on  his  judgment  at  law. 


This  cause  came  on  to  be  heard  upon  the  bill,  the  plea  of  a  judg- 
ment recovered  at  law,  replication  and  proofs  taken  in  support  of 
the  plea,  before  E.  Van  Arsdale,  the  master  called  to  advise  the 
Chancellor,  <fec.,  and  was  submitted  on  written  briefs,  by 

C.  L.  Hardenberghj  for  the  complainant; 
G.  Wood,  for  the  defendant. 

The  master  reported  the  following  opinion,  which  at  this  terra 
was  delivered  by  the  Chancellor: — 

This  cause  having  been  again  submitted  by  the  chancellor  to 
the  undersigned,  one  of  .the  masters  of  the  court,  to  advise  what 
decree  ought  to  be  made;  and  having  read  the  pleadings,  orders, 
proofs,  exhibits  and  depositions  made  and  taken  in  this  cause, 
and  considered  the  same ;  the  master  begs  leave  to  state,  that 
the  facts  of -the  defendant's  plea  are  proved.  He  however  con- 
siders it  proper  to  mention,  that  upon  examining  the  record  of 
the  judgment  pleaded,  it  appears,  that  the  declaration  contains 
three  counts;  the  two  first  are  founded  upon  two  promissory 


JANUARY  TERM,  1831.  231 

Catumann  v.  Ex'r  of  Traphagan. 

notes  to  which  the  defendant  demurred,  and  the  third  count  is  for 
money  lent,  goods  sold,  &c.,  to  which  the  defendant  pleads  non  as- 
sunipsit,  and  adds  a  similiter.  The  plaintiff  joins  in  demurrer: 
then  follows  the  award  of  the  venire,  the  finding  of  the  jury  for  the 
plaintiff,  and  the  assessment  of  damages  ;  the  issue  in  law  not  ap- 
pearing to  be  otherwise  disposed  of.  There  are  also  blanks  in  the 
judgment  of  the  court,  which  appear  to  have  been  left  for  the  pur- 
pose of  being  filled  up  with  the  taxed  costs.  These  errors  and 
irregularities,  the  master  considers,  are  to  be  corrected  by  some 
direct  proceeding,  and  are  not  subject  to  exception  when  the  pro- 
ceedings are  collaterally  drawn  in  question  :  2  Peters,  163. 

The  master  would  therefore  advise  your  excellency  to  decree  that 
the  injunction  heretofore  issued  in  this  cause  be  dissolved  ;  that  the 
complainant's  bill  be  dismissed  out  of  this  court,  with  costs  to  be 
taxed,  to  be  paid  out  of  the  moneys  deposited  in  court  in  this  cause 
by  the  complainant ;  and  the  residue  of  the  moneys  so  deposited  be 
paid  to  the  defendant  in  this  suit,  for  and  towards  the  damages, 
interest  and  costs  recovered  by  him  at  law  upon  the  judgment  in 
his  said  plea  set  forth  ;  and  that  the  said  defendant  be  at  liberty  to 
proceed  at  law  as  he  shall  be  advised,  for  the  recovery  of  any  bal- 
ance that  may  remain  due  to  him,  after  crediting  the  payment 
ordered  to  be  made  as  aforesaid. 

All  which  is  respectfully  submitted. 

ELIAS  V^AN  ARSDALE, 

Master  in  Chancery. 

20th  January,  1831. 


232  CASES  IX  CHANCERY. 

Skillman  and  Wife  v.'Teeple  et  al. 

WASHINGTON  SKILLMAN  AND  WIFE  v.  WILLIAM  TEEPLE 
AND  OTHERS. 


A  second  mortgagee,  having  also  a  judgment,  execution  and  levy  on  the  mort- 
gaged premises  for  the  same  debt ;  and  being  security  for  the  mortgagor  en 
two  notes  to  a  third  person  ;  receiving  from  the  mortgagor  a  sum  of  money 
equal  to  the  amount  then  due  on  the  notes;  and  giving  him  a  receipt  for  the 
money,  "to  be  credited  on  the  judgment,  provided  the  debtor  should  in- 
demnify him  on  his  surety  for  said  debtor  to  the  holder  of  these  notes,"  with 
a  parol  understanding  "  that  the  money  received  was  not  to  be  considered 
a  payment  by  the  debtor  on  the  judgment  until  he  should  pay  the  amount 
due  on  these  notes  to  the  holder," — is  entitled  to  hold  his  mortgage,  judg- 
ment, execution  and  levy,  as  security  for  the  payment  of  all  the  money  due 
^  to  him  thereon,  and  also  upon  the  notes  on  which  he  is  security ;  and  this 
lien  is  perfect  against  the  mortgagor,  and  all  persons  claiming  under  him  by 
subsequent  incumbrance  or  conveyance. 

By  this  payment,  receipt  and  agreement,  the  holder  of  these  notes  acquired  an 
interest  in  this  second  mortgage,  judgment  and  execution,  and  a  lien  upon 
the  mortgaged  premises  for  the  payment  of  the  notes,  prior  to  any  other  in- 
cumbrance excepting  the  first  mortgage,  which  interest  a  court  of  equity  will 
protect. 

The  holder  of  these  notes  (having  this  security  for  their  payment,  comprised  in 
the  same  lien  with  the  debt  to  the  mortgagee,  to  wit,  the  mortgage,  judgment 
and  execution  ;  and  the  mortgagee  being  also  debtor  to  the  holder,  as  secu- 
•  rity  on  these  notes)  is  entitled  to  have  the  whole  amount  due  on  the  notes 
paid  out  of  the  mortgaged  premises,  and  to  have  it  paid  next  after  satisfac- 
tion of  the  first  mortgage,  although  the  premises  should  fall  short  of  paying 
the  whole  amount  due  on  the  second  mortgage,  judgment  and  execution. 

The  mortgagor  having  afterwards  given  a  third  mortgage  on  the  same  premises, 
and  subsequently  assigned  all  his  property,  including  the  mortgaged  premi- 
ses, to  the  third  mortgagee  and  another  person,  for  the  benefit  of  his  credit- 
ors, this  third  mortgage  and  the  assignment  are  subject  to  the  previous  liens, 
and  cannot  disturb  the  equitable  right  of  the  holder  of  these  notes  to  have 
them  first  satisfied  out  of  the  mortgaged  premises. 

The  second  mortgagee  having  afterwards  assigned  his  mortgage,  judgment  and 
execution  to  the  third  mortgagee,  an  agreement  was  entered  into  between  the 
holder  of  these  notes,  a  female,  and  the  third  mortgagee,  that  she  would 
release  the  second  mortgagee  from  his  liability  on  the  notes,  on  condition 
that  the  second  mortgage  should  be  held  by  the  assignee  for  her  use,  as  secu- 
rity for  what  was  due  her  on  the  notes,  to  be  paid  after  the  amount  paid  by 
him  for  the  second  mortgage,  and  what  was  due  him  on  the  third  mortgage 
were  fully  satisfied ;  and  a  release  was  execated  by  her  in  consequence  of 
this  agreement :  this  agreement  and  release  are  without  any  consideration ; 


JANUARY  TERM,  1831.  233 

Skillman  and  Wife  v.  Teeple  et  al. 

the  only  ostensible  one,  to  wit,  that  she  should  have  a  lien  on  the  mortgaged 
premises  after  the  third  mortgage,  was  delusive,  she  being  entitled  to  the 
•priority  :  and  her  being  induced  to  give  up  the  personal  security  on  the  notes, 
and  take  a  place  in  the  list  of  incumbrances  on  the  mortgaged  premises,  poste- 
rior to  that  to  which  she  was  entitled,  evinced  such  ignorance,  mistake  and  mis- 
apprehension of  her  right,  that  the  agreement  should  be  set  aside  and  held  void. 

Although  this  be  a  rase  of  mere  mistake,  this  court  should  find  no  impediment  to 
correcting  it.  Equity,  in  rescinding  contracts,  does  not  confine  itself  to  cases  of 
fraud ;  cases  of  plain  mistake  or  misapprehension  of  right,  though  not  the  effect 
of  fraud  or  contrivance,  are  likewise  entitled  to  the  interposition  of  the  court. 


William  Teeple,  on  the  29th  April,  1809,  mortgaged  his 
farm,  of  one  hundred  and  fifty-nine  acres,  in  Somerset,  to  Jo- 
anna Dumont,  to  secure  payment  of  two  hundred  and  fifty  dol- 
lars. On  the  1st  April,  1816,  he  sold  and  conveyed  the  premises 
to  Isaac  Cooper ;  who  gave  him  a  mortgage  on  the  premises  to  se- 
cure the  payment  of  two  bonds  for  two  instalments  of  the  purchase 
money.  In  June,  1817,  a  judgment  was  entered  in  favor  of 
Teeple,  against  Cooper,  in  the  common  pleas  of  Somerset,  on. 
one  of  the  bonds,  for  one  thousand  six  hundred  and  seventy- 
seven  dollars,  the  balance  then  due  on  the  mortgage;  on  which 
execution  was  issued  and  returned  to  April  term,  1818,  levied  on 
the  mortgaged  premises.  Teeple  in  this  time  had  become  surety 
for  Cooper  in  two  sealed  bills  or  notes  given  by  him  to  George 
Vannest,  together  amounting  to  five  hundred  and  sixty-one  dol- 
lars. Vannest  died,  having  bequeathed  these  two  notes  to  Ann 
Stilwell.  Teeple  removed  to  the  state  of  New- York,  and  ap- 
pointed Andrew  Howell  his  attorney  to  collect  this  debt  of  Cooper. 
On  the  llth  May;  1818,  Howell  received  five  hundred  and  sixty- 
one  dollars  of  Cooper,  and  gave  him  a  receipt  for  that  sum,  "  to 
be  credited  on  the  above  judgment  and  execution,  provided  the 
said  Cooper  shall  indemnify  the  said  Teeple  on  his  surety  for 
said  Cooper  to  Geo.  Vannest  for  the  same  amount."  There  was 
a  verbal  understanding,  also,  "  that  this  should  not  be  considered 
a  payment  on  the  mortgage,  until  Cooper  had  pai(fr  to  Vannest 
the  amount  of  the  notes."  On  the  1st  May,  1819,  Isaac  Cooper 
mortgaged  the  same  premises  to  John  Frel  high  uy  sen,  as  the  com- 
mittee or  guardian  of  Jacob  Cooper,  an  idiot,  and  agent  for  Mary 
Cooper,  widow;  and  John  Baird,  as  guardian  of  the  children  of 


234  CASES  IN  CHANCERY. 

Skillman  and  Wife  v.  Teeple  et  al. 

Abraham  Cooper,  deceased  :  to  secure,  1.  A  bond  to  John  Fre- 
linghuysen in  three  thousand  dollars,  conditioned  for  the  mainte- 
nance of  Jacob  Cooper,  the  idiot ;  and  2.  The  payment  of  a 
sealed  bill  to  John  Baird,  guardian,  &c.,  for  seven  hundred  and 
sixty  dollars.  Isaac  Cooper  afterwards  failed,  and  on  the  12th 
May,  1821,  assigned  all  his  estate,  real  and  personal,  (including 
the  mortgaged  premises,)  to  the  said  John  Frelinghuysen  and 
Thomas  A.  Hartwell,  for  the  benefit  of  his  creditors.  On  the 
31st  September,  1821,  Ann  Stilwell  exhibited  to  the  said  as- 
signees her  demand  on  the  said  notes,  for  a  dividend.  On  the 
1st  May,  1822,  it  was  agreed  in  writing,  between  Andrew  Howell, 
the  attorney  of  Teeple,  and  John  Frelinghuysen,  as  guardian, 
&c.,  among  other  things,  "  that  said  Frelinghuysen,  in  be- 
half of  his  ward,  should  pay  the  funds  of  said  idiot  in  his 
hands,  to  obtain  the  priority  of  said  Teeple's  incumbrances  on 
the  mortgaged  premises,  and  the  attorney  of  Teeple  should  trans- 
fer the  said  mortgage  and  judgment  to. Frelinghuysen  ;  that  the 
premises  might  be  disposed  of  to  satify  the  incumbrances,  in  the 
following  order:  1.  The  amount  due  on  the  mortgage  to  Mrs. 
Dumont ;  2.  The  sura  due  in  behalf  of  said  Jacob  Cooper ;  3. 
The  sum  due  J.  Baird,  guardian  of  the  children  of  Abraham 
Cooper;  and  4.  The  debt  due  the  estate  of  George  Van  nest, 
deceased,  now  Ann  Stilwell's,  &c.  ;  said  Frelinghuysen  agreeing 
that  said  bond  and  mortgage  should  be  held  by  him  for  the  use 
of  Ann  Stilwell,  for  the  payment  of  her  debt,  after  the  other 
claims  were  fully  satisfied,  on  condition  that  she  release  the  se- 
curity, William  Teeple,  therefrom  ;  and  if  she  would  not  release, 
to  hold  said  mortgage  as  Teeple's  security."  Ann  Stilwell,  upon 
being  advised  by  Frelinghuysen  and  Howell  that  it  was  for  her 
interest  to  assent,  by  a  writing  under  her  hand,  "  agreed  to  the 
above  arrangement,  and  released  Teeple,  as  the  surety  of  Cooper, 
by  reason  of  the  payment  of  her  debt  to  be  made,  as  stated,  after 
the  claims  of  Mrs.  Dumont,  Jacob  Cooper,  and  John  Baird  as 
guardian,"  &c.  After  this  agreement,  Ann  Stilwell  delivered  up 
the  notes  to  Howell,  who  sent  them  to  Teeple,  and  as  his  attor- 
ney assigned  the  mortgage,  judgment,  &c.  of  Teeple  against 
Cooper,  to  said  Frelinghuysen.  The  assignees  of  Isaac  Cooper 
offered  the  premises  for  sale,  but  not  being  able  to  dispose  of  the 


JANUARY  TERM,  1831.  235 

Skillman  and  Wife  v.  Teeple  et  al. 

farm  to  advantage,  it  was  bid  in  by  Howell,  by  the  direction  of 
Frelinghuysen,  for  the  amount  of  said  Frelinghuysen  and  Baird's 
demands.  Ann  Stilwell  intermarried  with  Washington  Skillman, 
and  they  filed  the  present  bill  against  the  defendants  to  set  aside 
her  agreement  and  release,  and  to  set  up  and  establish  the  priority 
of  her  claim  for  the  payment  of  the  amount  due  on  the  notes,  un- 
der the  mortgage  and  judgment  of  Teeple. 

The  defendants,  Frelinghuysen  and  Howell,  answered.  Wit- 
nesses were  examined  and  the  cause  heard,  on  the  pleadings  and 
proofs,  before  George  K.  Drake,  esquire,  one  of  the  masters  of  this 
court,  called  to  advise  the  chancellor,  who  had  been  of  counsel 
with  one  of  the  parties.  The  cause  was  argued  by 

G.  Wood,  for  complainants  ; 

T.  Frelinglmysen,  for  defendants. 

At  this  term  the  following  opinion  was  delivered  by  the  court: 

DRAKE,  master.  In  this  case  it  appears  that  the  defendant,  Wil- 
liam Teeple,  on  the  29th  day  of  April,  A.  D.  1809,  was  seized  iu 
fee  simple  of  a  certain  farm  or  tract  of  land,  situate  in  the  county 
of  Somerset,  and  state  of  New-Jersey,  containing,  by  estimation, 
one  hundred  and  fifty-nine  acres  and  sixteen*"hundredths  of  an  acre, 
which  is  particularly  described  in  the  complainants'  bill  of  com- 
plaint ;  and,  being  so  seized,  did,  on  the  same  day,  execute  a  mort- 
gage in  fee,  on  the  said  tract  of  land,  to  the  defendant,  Joanna 
Dumont,  to  secure  to  her  the  payment  of  the  sum  of  two  hundred 
and  fifty  dollars,  or  thereabouts;  which  said  indenture  of  mortgage 
was,  on  the  8th  day  of  May,  A.  D.  1809,  duly  recorded  in  the 
clerk's  office  of  the  said  county  of  Somerset. 

It  further  appears,  that  one  Isaac  Cooper,  of  the  county  of 
Somerset,  and  the  said  William  Teeple,  on  or  about  the  5th  day 
of  May,  A.  D.  1817,  executed  and  delivered  to  one  George  Van- 
nest,  their  sealed  bill,  or  promissory  note,  (it  is  not  ascertained 
which,)  bearing  date  that  day,  for  two  hundred  and  sixty  dollars, 
payable  with  interest  from  date:  and  on  or  about  the  8th  day  of 
May,  A.  D.  1818,  they  executed  and  delivered  to  said  Vannest 


236  GASES  IN  CHANCERY. 

Skillman  and  Wife  v.  Teeple  et  al. 

their  other  sealed  bill,  or  promissory  note,  bearing  date  on  that  day, 
for  the  further  sum  of  three  hundred  dollars,  payable  with  interest 
from  date:  which  said  Vannest  shortly  afterwards  departed  this 
life;  and  by  virtue  of  his  last  will  and  testament,  the  said  Ann 
Skillman,  the  complainant,  (then  Ann  Stilwell,)  became  entitled  to 
the  said  securities,  so  executed  to  George  Vaunest,  as  aforesaid,  and 
to  receive  the  moneys  due,  and  to  become  due,  thereon.  And  that 
the  said  Ann  afterwards,  to  wit,  on  the  31st  day  of  December,  A. 
D.  1821,  claimed  from  the  assignees  of  said  Cooper,  as  due  to  her 
upon  the  said  securities,  the  principal  sums  aforesaid,  together  with 
interest  from  the  1st  day  of  May,  A.  D.  1819. 

It  further  appears,  that  the  said  William  Teeple,  on  or  about 
the  1st  day  of  April,  A.  D.  1816,  by  deed  bearing  date  that  day, 
sold  and  conveyed  the  said  farm  or  tract  of  land,  to  the  said  Isaac 
Cooper,  for  the  sum  of  five  thousand' three  hundred  and  forty- 
three  dollars  and  ninety-nine  cents;  part  of  which  was  paid  at 
the  time,  and  to  secure  the  residue,  that  is,  the  sum  of  three 
thousand  five  hundred  and  sixty-two  dollars  and  sixty-six  cents, 
to  the  said  William  Teeple,  the  said  Isaac  executed  to  him  his 
two  several  bonds,  conditioned  for  the  payment  of  that  sum,  and, 
together  with  his  wife,  executed  and  delivered  to  the  said  Teeple 
their  indenture  of  mortgage  on  the  same  tract  of  land  and  prem- 
ises, bearing  date  the  same  day;  which  mortgage  was  duly  re- 
corded in  the  Somerset  county  registry  of  mortgages,  on  the  4th 
day  of  May,  A.  D.  1816.  And  that  afterwards,  to  wit,  on  the 
14th  day  of  June,  A.  D.  1817,  the  debt  intended  to  be  secured  by 
said  mortgage  not  having  been  wholly  paid,  a  judgment  was  en- 
tered in  the  inferior  court  of  common  pleas  of  the  county  of  Som- 
erset aforesaid,  in  favor  of  the  said  William  Teeple,  against  the 
said  Isaac  Cooper,  for  the  sum  of  one  thousand  six  hundred  and 
seventy-seven  dollars  and  seventy-one  cents  debt,  and  four  dollars 
and  twenty-one  cents  costs  of  suit — the  balance  then  remaining 
due  on  the  said  bonds;  on  which  judgment  a  writ  of  fieri  facias 
de  bonis  et  terris  was  issued,  returnable  to  the  term  of  April,  A.  D. 
1818  ;  by  virtue  of  which,  the  sheriff  of  the  said  county  duly  levied 
on  the  said  mortgaged  premises,  together  with  other  property  of 
the  defendant. 

It  further  appears,  that  the  said  William  Teeple,  on  the  7th 


JANUARY  TERM,  1831.  237 

Skillman  and  Wife  v.  Teeple  et  al. 

day  of  May,  A.  D.  1817,  having  removed  to  the  county  of 
Seneca,  in  the  state  of  New- York,  by  his  letter  of  attorney,  bear- 
ing date  that  day,  duly  sealed  and  executed  by  him,  constituted 
and  appointed  the  defendant,  Andrew  Howell,  his  true  and  law- 
ful attorney,  and  duly  authorized  him,  among  other  things,  to  col- 
lect all  debts  and  demands  due  to  him  from  the  said  Isaac  Cooper, 
and  every  other  person,  and  to  sue  for,  receive,  compound  and 
agree  for,  and  make  acquittances  for  the  same ;  and  to  do  all  other 
lawful  acts  in  the  premises  as  fully  as  he  himself  could  do,  if  per- 
sonally present.  Which  trust  the  said  Andrew  Howell  took  upon 
himself  to  execute  and  perform  ;  and  in  pursuance  thereof,  on  the 
8th  day  of  May,  A.  D.  1818,  received  from  the  said  Isaac  Cooper 
the  sum  of  five  hundred  and  sixty-one  dollars,  and  gave  to  said 
Cooper  a  receipt  for  the  same,  in  the  words  and  figures  following, 
to  wit : — 

"  SOMERSET  PLEAS. 

"  William  Teeple, ") 

vs.  >In  debt,  fi.  fa. 

"  Isaac  Cooper.       ) 

"Received,  May  llth,  1818,  of  Isaac  Cooper,  the  defendant,  five 
hundred  and  sixty-one  dollars,  to  be  credited  on  the  above  action, 
provided  the  said  Cooper  shall  indemnify  the  said  William  Teeple 
on  his  surety  for  said  Isaac  to  George  Van  nest  for  the  same 
amount,  on  the  first  day  of  this  May  instant* 

"  A.  HOWELL,  Att'y  fact 

"$561.  for  Plaintiff." 


Which  receipt  (as  stated  in  the  answer  of  Andrew  Howell)  included 
the  two  sums  of  money  got  of  Vannest,  to  wit,  two  hundred  and 
sixty-one  dollars  got  the  5th  May,  1817,  and  three  hundred  dollars 
got  the  8th  day  of  May,  1818. 

It  further  appears,  that  afterwards,  to  wit,  on  the  first  day  of 
May,  A.  D.  1819,  the  said  Isaac  Cooper  and  Susannah  his  wife 
executed  their  mortgage  in  fee,  bearing  date  that  day,  on  the 
same  tract  of  land  and  premises,  to  the  said  John  Frelinghuy- 
sen,  (as  guardian  of  Jacob  Cooper,  an  idiot,  and  agent  for  the 
widow  Maria  Cooper,)  and  the  said  defendant,  John  Baird,  (as 
guardian  of  the  children  of  Abraham  Cooper,  deceased,)  to  se- 
cure, in  the  first  place,  to  the  said  John  Frelinghuysen,  a  certain 


238  CASES  IN  CHANCERY. 

Skillman  and  Wife  v.  Teeple  et  al. 

"  bond  of  indemnity  given  and  executed  by  Isaac  Cooper,  for 
securing  the  maintenance  and  support  of  Jacob  Cooper,  in  the 
sum  of  three  thousand  dollars,  to  John  Frelinghuysen,  guardian 
of  said  idiot;  and  also  to  secure,  after  said  bond  of  indemnity,  the 
payment  of  a  certain  sealed  bill  ta  John  Baird,  guardian  of  the 
children  of  Abraham  Cooper,  deceased,  in  the  sum  of  seven  hun- 
dred and  sixty  dollars :  bond  of  indemnity  bearing  even  date  with 
said  mortgage — sealed  bill  dated  January  13th,  1815  :" — which 
mortgage  was  duly  recorded,  on  the  15th  day  of  May,  1819,  in 
the  Somerset  county  registry  of  mortgages.  And  that  afterwards, 
to  wit,  on  the  12th  day  of  May,  A.  D.  1821,  the  said  Isaac  Cooper 
and  Susannah  his  wife  assigned  and  conveyed  to  the  said  John  Fre- 
linghuysen and  Thomas  A.  Hartwell,  esquires,  all  their  real  and 
personal  estate,  including  the  mortgaged  premises,  in  trust,  to  pay 
the  debts  of  said  Cooper.  And  that  the  said  complainant,  then  Ann 
Stilwell,  on  the  31st  day  of  December,  A.  D.  1821,  exhibited  her 
demands,  founded  on  the  securities  so  as  aforesaid  given  to  George 
Vannest,  for  a  dividend,  to  the  said  Frelinghuysen  and  Hartwell, 
assignees  as  aforesaid. 

And  it  further  appears,  that  on  or  about  the  1st  day  of  May, 
1822,  the  said  Andrew  Howell  as  attorney  in  fact  for  the  said 
William  Teeple,  and  the  said  John  Frelinghuysen,  as  guardian  of 
Jacob  Cooper,  entered  into  an  agreement  in  writing,  in  the  words 
and  figures  following,  to  wit : — 

"  SOMERSET  PLEAS. 

w  William  Teeple,  1  Judgment  and  execution   in  sheriff's   hands, 
vs.  >      levy    made.      Sum    due    May    1st,    1822, 

"  Isaac  Cooper,     j      $1749.65. 

"  Whereas  William  Teeple  hath  the  prior  incumbrance  on  the 
real  and  personal  estate  of  said  Cooper,  now  assigned  to  Thomas 
A.  Hartwell  and  John  Frelinghuysen,  as  above  stated,  and  no 
sale  of  said  estate  real  can  be  made  to  satisfy  the  amount ;  and 
John  Frelinghuysen,  guardian  of  Jacob  Cooper,  an  idiot,  and 
John  Baird,  guardian  of  the  children  of  Abraham  Cooper,  dec'd, 
now  hold  an  after  mortgage  on  said  real  estate ;  and  an  agree- 
ment having  been  this  day  made  between  said  guardians  and 
Andrew  Howell,  attorney  for  William  Teeple,  that  the  said  John 
Frelinghuysen  shall  pay,  in  behalf  of  said  idiot,  the  funds  in  his 


JANUARY  TERM,  1S31.  239 

Skillman  and  Wife  v.  Teeple  et  al. 


hands  of  said  idiot,  to  obtain  the  priority  of  said  Teeple's  in- 
curubrance  on  said  premises,  to  satisfy  his  and  said  Baird's 
mortgage,  according  to  its  tenor.  And  the  said  attorney  of  Wil- 
liam Teeple  to  transfer  the  bond  and  mortgage  of  said  Teeple  to 
him  the  said  John  Frelinghuysen,  guardian  for  said  idiot;  that 
he  may,  by  reason  of  said  transfer,  first  secure  the  sum  due  in 
behalf  of  said  idiot,  then  the  sura  due  John  Baird,  guardian  of 
children  of  Abraham  Cooper,  deceased,  and  then  the  sum  of  six 
hundred  and  seventy-eight  dollars  and  eighty-one  cents,  principal 
and  interest  of  a  debt  due  estate  of  George  Van  nest,  dec'd,  now 
Ann  Stilwell — said  Teeple  having  held  said  debt  in  above  judg- 
ment, according  to  a  conditional  writing  with  Cooper  the  defen- 
dant, by  reason  of  his  being  surety  therefor.  Now  as  said  trans- 
fer of  said  mortgage,  bond  and  judgment  hath  been  made,  I, 
J.  Frelinghuysen,  agree  to  effect  the  payments  aforesaid,  at  the 
death  of  Jacob  Cooper,  so  far  forth  as  the  said  estate  will  admit ; 
if  not  before  done  by  said  Isaac  Cooper  by  any  payments  he  may 
be  enabled  to  make,  or  by  any  sale  that  said  Cooper's  assignees 
may  make  to  satisfy  said  sums  aforesaid.  And  further,  in  con- 
sideration of  said  transfer,  I,  John  Frelinghuysen,  agree  that 
said  bond  and  mortgage  shall  be  held  by  J.  Frelinghuysen  for 
the  use  of  Ann  Stilwell,  for  the  payment  of  her  demand,  to  take 
effect  after  the  several  sums  of  said  idiot  and  children  of  Abraham 
Cooper  are  fully  satisfied,  upon  condition  that  she  release  the 
security,  Wm.  Teeple,  therefrom  ;  and  if  she  will  not  release, 
to  hold  said  mortgage  as  Teeple's  security.  A  certain  mortgage 
given  to  Joanna  Dumont,  the  first  incumbrance,  before  omitted, 
is  considered  to  be  paid  in  the  first  instance. 

"  May  1st,  1822.  "  JOHN  FRELIXGHUYSEN, 

Guardian  of  Jacob  Cooper. 
"  A.  HOWELL,  Att'y 

fact  for  Wm.  Teeple. 

"  To  pay  Widow  Dumont  $365.91,  May,  1822. 
"        Jacob  Cooper,  support. 
"        Jno.  Baird,  guardian,  $760  and  int. 
"        Ann  Stilwell,  $678.81,  May,  1822." 

Annexed  to  which  agreement  is  the  following,  entered  into  and 
signed  by  the  said  Ann  Stilwell,  to  wit: — 


240  CASES  IN  CHANCERY. 

Skill  man  and  Wife  v.  Teeple  et  al. 

"  I  agree  to  the  foregoing  settlement,  and  do  release  William 
Teeple,  the  security  for  Isaac  Cooper,  by  reason  of  my  payment 
to  be  made  as  stated,  after  widow  Dumont,  Jacob  Cooper's  support, 
John  Baird,  as  guardian,  &c.,  and  then  my  debt  to  be  paid. 

"  May  16th,  1822.  "  ANN  STILWELL. 

"  Witness, — JOHN  M.  SCHENCK." 

Which  several  agreements,  although  bearing  different  dates,  ap- 
pear to  have  been  finally  entered  into  and  executed  at  the  same 
time,  and  in  the  month  of  May,  1822;  after  which,  the  said 
Ann  Stilwell  delivered  the  said  two  notes,  or  sealed  bills,  exe- 
cuted by  said  Teeple  and  Cooper  to  George  Van  nest,  as  afore- 
said, to  the  said  Andrew  Howell,  attorney  in  fact  as  aforesaid, 
who  soon  afterwards  sent  them  to  the  said  William  Teeple  in  the 
state  of  New- York.  And  the  said  bonds  and  mortgage  given  by 
Cooper  to  Teeple,  as  aforesaid,  and  the  judgment  confessed  there- 
on, were  thereupon,  in  pursuance  of  said  agreement,  transferred 
and  delivered  over  to  the  said  John  Frelrnghuysen. 

And  it  further  appears,  that  the  said  Frelinghuysen  and  Hart- 
well,  as  assignees  as  aforesaid,  soon  after  the  making  of  the  said 
agreements,  advertised  the  said  mortgaged  premises  for  sale  at 
public  auction,  and  after  repeated  attempts  to  sell,  and  adjourn- 
ments for  want  of  buyers,  the  same  were  finally  struck  off  to 
Andrew  Howell,  for  the  amount  then  due  to  the  said  Freling- 
huysen and  Baird,  guardians  aforesaid — the  said  Howell  having 
bid  at  the  instance  of  the  said  John  Frelinghuysen  ;  who  in  his 
answer  filed  in  this  cause  saith,  that  it  was  not  struck  off  "  with 
a  view  to  hold  the  same  for  said  sum,  but  that  the  said  Ann,  or 
any  other  creditor  of  the  said  Isaac,  might,  if  they  wished,  take 
the  property  at  the  bid  of  said  Howell ;  and  that  the  same  hath 
been  repeatedly  offered  to  the  said  Ann  by  this  defendant,  and 
who  hath  ever  been,  and  still  is,  willing  to  do  the  same  ;  that 
no  deed  as  yet  has  been  made  to  the  said  Howell  for  said  farm, 
but  the  same  has  remained  in  the  possession  of  said  Isaac  Cooper, 
who  keeps  said  idiot ;  and  the  proceeds  of  the  said  farm,  not 
even  keeping  out  of  the  same  any  part  for  necessary  repairs  or 
expenses,  have  by  this  defendant  been  applied  to  the  payment  of 
the  mortgage  of  the  said  Joanna  Dumont,  that  being  the  first 
incumbrauce." 


JANUARY  TERM,  1831.  2tl 

Skillman  and  Wife  v.  Teeple  et  al. 

The  foregoing  facts  are  fully  proved  and  established  by  the 
bill,  .answers,  proofs  and  exhibits  in  this  cause;  and  the  com- 
plainant, Ann  Stilwell,  on  the  ground  of  the  foregoing  facts,  and 
others  set  forth  in  her  bill  of  complaint,  charges  and  insists  that 
by  virtue  thereof,  and  especially  of  the  payment  of  the  suta  of 
five  hundred  and  sixty-one  dollars  by  the  said  Isaac  Cooper  tj 
Andrew  Ho  well,  attorney  in  fact  for  William  Teeple,  in  manner 
aforesaid,  and  the  agreement  of  the  parties  at  that  time,  and  the 
receipt  given  for  the  same,  she  became  entitled  to  an  interest  in 
the  said  judgment  and  mortgage,  and  to  a  lien  upon  the  said 
mortgaged  premises,  to  have  the  notes  or  bills  so  given  to  George 
Vannest,  and  bequeathed  to  her  as  aforesaid,  secured  and  paid 
out  of  the  same,  prior  to  any  other  incumbrance  except  the  previous 
mortgage  of  Joanna  Dumont,  before  mentioned  ;  and  that  she 
was  mistaken  and  deceived  in  entering'  into  the  agreement  so 
made  and  signed  by  her  as  aforesaid,  dated  the  16th  day  of  May, 
1822,  and  that  she  did  the  same  under  mistake,  misapprehension, 
and  misrepresentation  of  her  rights ;  and  prayed  for  relief  in  the 
premises. 

With  respect  to  her  lien  on  the  mortgaged  premises,  it  appears 
by  the  testimony  of  Aaron  Longstreet,  esquire,  that  at  the  time 
that  the  money  was  procured  from  George  Vaunest,  Teeple  was 
not  willing  to  be  security,  unless  "  it  was  to  he  considered  as  no 
payment  on  the  part  of  Cooper  until  the  money  was  afterwards 
actually  paid  by  Cooper  to  Vannest ; "  and  it  was  so  agreed.  An- 
drew Howell's  answer  is  in  accordance  with  this;  and  the  receipt 
then  drawn,  concluded,  and  proves  the  arrangement.  After  the 
receipt  of  this  money,  Teeple  still  held  his  bonds  and  mortgage, 
judgment,  execution,  and  levy  on  the  mortgaged  premises,  as  a 
security  for  the  payment  of  all  that  was  due  to  him,  and  also  the 
notes  or  obligations  given  to  Vannest.  And  this  lien  was  per- 
fect, not  only  against  Cooper,  but  against  all  persons  claiming 
under  him — all  having  notice  thereof,  by  the  public  nature  of 
the  securities  in  his  hands,  and  no  person  being  able  to  claim 
that  the  amount  of  the  lien  so  spread  upon  the  public  records 
should  be  reduced  by  any  payments,  except  according  to  the  fair 
agreement  of  the  parties.  Teeple  was  under  no  obligations  to 
give  an  absolute  credit  on  the  bonds  and  mortgage,  or  judgment 

Q 


242  CASES  IN  CHANCERY. 

Skillman  and  Wife  v.  Teeple  et  al. 

and  execution,  and  neither  he  nor  his  attorney  in  fact  had  any- 
thing to  fear  from  the  threats  of  the  assignees  of  Cooper.  Teeple 
having  then  in  fact  obtained  these  securities,  that  these  notes -or 
obligations  of  Yannest  (now  belonging  to  the  complainants)  should 
be  satisfied,  the  complainant,  Ann.  Stilwell,  acquired  an  interest 
in  that  security,  which  a  court  of  equity  will  enforce.  This  doc- 
trine is  fully  recognized  in  the  case  of  Moses  v.  Murgalroyd, 
1  John.  C.  C.  129.  The  chancellor  says,  "  The  plaintiffs,  as 
holders  of  the  notes,  are  entitled  to  the  benefit  of  this  collateral 
security,  given  by  their  principal  debtor  to  his  surety ;  and  the 
case  of  Maure  v.  Harrison,  1  Eq.  Ab.  93,  is  directly  to  this 
point.  These  collateral  securities  are,  in  fact,  trusts  created  for 
the  better  protection  of  the  debt,  and  it  is  the  duty  of  the  court  to 
see  that  they  fulfill  their  design.  And  whether  the  plaintiffs  were 
apprized  at  the  time  of  the  creation  of  this  security,  is  not  mate- 
rial. The  trust  was  created  for  their  benefit,  or  for  the  better 
security  of  their  debt,  and  when  it  came  to  their  knowledge  they 
were  entitled  to  affirm  the  trust  and  to  enforce  its  performance. 
This  was  the  principle  assumed  in  the  case  of  Wilson  v.  Blight, 
1  Johns.  C.  205."  See  also,  2  Johns.  C.  R.  422. 

The  complainant,  Ann  Stilwell,  then,  at  that  time  became  en- 
titled to  have  her  demand  of  five  hundred  and  sixty-oue  dollars 
paid  out  of  the  mortgaged  premises,  and  her's  became  the  first 
entitled  to  be  paid  after  the  mortgage  to  Joanna  Dumont.  It  was 
comprised  in  the  same  lien  with  that  of  her  debtor,  William  Tee- 
ple; and  if  it  should  turn  out  that  the  property  is  not  sufficient 
to  pay  the  whole  lien,  there  could  be  no  propriety  in  this  court 
ordering  the  compJainant  to  share,  in  any  proportion  whatever, 
with  William  Teeple,  and  put  her  to  a  suit  against  him  in  the 
state  of  New- York,  or  his  agent  here,  to  recover  the  money  back 
again.  She  is  entitled  to  her  whole  demand,  from  the  property 
or  from  Teeple ;  and  if  the  property  is  appropriated  to  pay  the 
debt,  he  cannot  complain,  even  if  it  should  fall  short  of  paying  his 
demand. 

Teeple  had,  before  this  time,  removed  out  of  this  state  into 
the  western  part  of  the  state  of  New- York ;  and  Cooper  after- 
wards, to  wit,  on  the  1st  day  of  May,  1819,  mortgaged  the  pre- 
mises to  Frelinghuy  sen  and  Baird,  as  aforesaid ;  and  on  the  12th 


JANUARY  TERM,  1831.  243 

Skillman  and  "Wife  v.  Teeple  et  al. 

day  of  May,  1821,  assigned  the  mortgaged  premises  and  other  prop- 
erty to  Frelinghuysen  and  Hartwell,  in  trust,  for  the  payment  of 
debts.  This  mortgage  and  this  assignment  were,  of  course,  both 
subject  to  the  previous  liens,  and  could  not  disturb  the  equitable 
claim  of  the  complainant  te  be  first  satisfied  for  her  debt  out  of  the 
mortgaged  premises. 

Under  such  circumstances,  the  parties  came  together,  on  the 
16th  day  of  May,  1822,  and  the  agreements  before  stated  were 
entered  into. 

The  first  obvious  circumstance  about  this  agreement  is,  that  on, 
the  part  of  the  complainant,  it  was  entered  into  without  any  con- 
sideration. The  only  apparent  one,  to  wit,  that  she  should  have  a 
lien  on  the  mortgaged  premises  after  those  stated  in  the  agreement, 
was  delusive.  The  assignees  had  no  right  to  prefer  her  to  the 
general  creditors,  unless  the  property  came  into  their  hands  subject 
to  a  lien  in  her  favor;  and  if  subject  to  it  at  all,  it  must  have  had 
a  preferable  place  to  that  assigned  her  by  the  agreement.  So  she 
was  induced  to  give  up  the  personal  security  of  Teeple,  merely 
to  take  a  posterior  place  in  the  list  of  iucumbrances.  This 
evinces  at  least  ignorance  and  mistake  of  her  rights.  She  charges 
that  it  was  done  under  the  fraudulent  representations,  advice  and 
persuasion  of  Andrew  Howell  and  John  Frelinghuysen.  This  is 
denied  by  them.  Howell,  in  his  answer,  admits  that  in  answer 
to  some  inquiries  of  the  complainant,  respecting  the  recovery 
of  her  claim  from  Teeple,  in  the  state  of  New  York,  he  told 
her  that  said  "  Teeple  was  apprised  of  her  intention  so  to  proceed, 
and  that  he  had  prepared  himself  for  such  an  event,  by  giving 
or  making  a  judgment  to  his  own  honest  creditors  in  the  county 
of  Tompkins,  state  of  New  York,  for  an  amount  equal  to  the 
full  and  fair  value  of  his  property,  and  that  he  had  received 
that  information  from  the  said  William  Teeple."  John  M. 
Sehenck,  who  is  the  witness  to  the  agreement,  and  who  is  al- 
leged by  the  defendants  to  have  attended,  when  it  was  made,  as 
the  friend  and  adviser  of  Ann  Stilwell,  testifies,  that  "  Mr.  Fre- 
linghuysen wrote  to  him,  and  requested  him  to  bring  Aun  Stil- 
well, the  complainant,  there,  on  that  day ;  and  witness  took  her 
there  agreeably  to  Mr.  Frelinghuysen's  request."  At  this  meeting, 
"Ann  Stilwell  was  advised  by  Judge  Howell  to  give  up  Her 


244  CASES  IN  CHANCERY. 

Skillman  and  Wife  v.  Teeple  et  al. 

claim  against  Teeple,  and  to  come  into  an  arrangement  which 
was  then  prepared.  Mr.  Frelinghuysen  stated,  if  witness  recollects 
right,  that  he  thought  by  Ann  Stillwell's  doing  this,  that  is, 
coming  into  this  arrangement,  it  would  be  best  for  her.  Judge 
Howell  said  to  her,  that  if  she  were  his  own  daughter  he  would 
advise  her  to  do  it.  Mr.  Freliughuyseu  said,  witness  thinks,  that 
if  she  would  come  into  the  arrangement  after  the  idiot's  money,  he 
would  be  able  to  secure  her  by  a  sale  of  the  property  of  Isaac 
Cooper.  Witness  was  not  acting  as  agent  for  Ann  Stilwell ;  he 
merely  brought  her  down  pursuant  to  the  request  of  Mr.  Freling- 
huysen." 

Nicholas  Stilwell,  (the  father  of  the  complainant,)  testified  that 
in  June,  1824,  Mr.  Frelinghuysen  told  witness  that  "if  Ann,  the 
complainant,  had  not  fell  in  with  them  in  this  agreement,  she  never 
would  have  received  any  thing;  that  it  was  his  advice  to  her  to 
do  so,  and  he  would  have  done  so  had  it  been  his  own  child.  He 
stated  his  reasons,"  &c. 

Aaron  Longstreet,  esquire,  testified,  among  other  things,  that  he 
was  in  company  with  Howell  and  Frelinghuysen,  when  a  conver- 
sation took  place  about  this  business,  and  Howell  stated  some  rea- 
sons, "  why  he  had  advised  Ann  Stilwell  to  close  in  with  the  settle- 
ment before  spoken  of,  and  that  he  saw  nothing  in  the  way  to  pre- 
vent Ann  Stilwell  recovering  her  money  yet.  After  this  conversa- 
tion, old  Mr.  Stilwell  said,  I  cannot  see  how  it  comes  that  Ann 
Stilwell  is  placed  last  in  all  this  business.  Mr.  Frelinghuysen 
answered,  because  she  never  was  first." 

It  would  appear  from  this  testimony  that  the  defendants,  An- 
drew Howell  and  John  Frelinghuysen,  went  further  in  advising 
and  persuading  Ann  Stilwell  to  enter  into  this  arrangement,  than 
they  now  recollect  to  have  done,  and  from  their  standing  in  so- 
ciety, knowledge  of  the  law,  and  general  acquaintance  with 
business,  she  would  be  apt  to  be  influenced  by  their  opinions; 
and  there  are  good  grounds  from  this  evidence,  and  the  other 
circumstances  of  the  case,  to  believe  that  she  was  influenced  by 
their  advice  to  make  the  arrangement  whjch  she  did;  and  which 
would  prove  to  be  totally  destructive  of  her  claims,  if  binding 
upon  her.  This  court  has,  in  many  cases,  gone  far  in  establish- 
ing a  fraud  from  the  want  or  inadequacy  of  consideration. 


JANUARY  TERM,  1831.  245 

Skillman  and  Wife  v.  Teeple  et  al. 

"Even  when  standing  alone,  if  the  inadequacy  of  the  conside- 
ration be  so  strong,  gross  and  manifest,  that  it  must  be  impossi- 
ble to  state  it  to  a  man  of  common  sense  without  an  exclamation 
at  the  inequality  of  it;  a  court  of  equity  will  consider  it  a  suffi- 
cient proof  of  fraud  to  set  aside  the  purchase."  "  If  there  be  such 
inadequacy  as  to  show  that  the  person  did  not  understand  the 
bargain  he  made,  or  that  he  was  so  oppressed  that  he  was  glad  to 
make  it  knowing  its  inadequacy,  it  will  show  a  command  over  him 
which  may  amount  to  fraud."  Newland  on  Contracts,  359  ;  1  Bro. 

a  a  9. 

The  defendants  say  that  they  acted  conscientiously.  It  is  not 
necessary  that  they  should  have  acted  intentionally  •  wrong. 
They  were  acting  as  trustees  for  third  persons,  and  there  is  rea- 
son to  believe,  from  the  evidence,  that  in  their  desire  to  prevent 
any  loss  being  sustained  by  their  respective  cestuis  que  trust, 
they  were  too  intent  upon  making  an  arrangement  with  the 
complainant  favorable  to  their  interests,  and  lost  sight  too  much 
of  hers.  It  cannot  be  supposed  that  they  had,  at  that  time,  a  full 
apprehension  of  the  nature  of  her  claim,  or  could  have  antici- 
pated all  the  effects  of  the  arrangement,  as  connected  with  lapse 
of  time  and  depreciation  of  property,  upon  her  interests;  for 
they  would  not,  with  that  knowledge,  have  taken  any  part  in 
bringing  about  an  arrangement  so  prejudicial  to  her.  Yet  when 
the  circumstances  of  this  case  are  considered,  in  connection  with 
the  superior  discernment,  knowledge  and  influence  of  the  defen- 
dants over  the  complainant,  and  their  consequent  obligations  to 
a  cautious,  discreet  and  proper  exercise  of  their  influence,  I  am 
of  opinion  that  if  this  be  a  case  of  mere  mistake,  this  court 
should  not  find  any  impediment  to  the  correction  of  it,  arising 
out  of  the  possibility,  that  it  may  expose  the  defendants  to  incon- 
venience; or  loss.  And  "Equity,  in  rescinding  contracts,  does 
not  confine  itself  to  cases  of  fraud.  Cases  likewise  of  plain  mis- 
take, or  misapprehension,  though  not  the  effect  of  fraud  or 
contrivance,  are  entitled  to  the  interference  of  this  court."  New- 
land  on  Contracts,  432;  2  Fes.  126;  1  Vernon,  32;  1  Mose- 

ly,  364. 

In  this  case,  there  can  be  no  doubt  that  the  complainant,  Ann 
Stilwell,  acted  under  a  mistake  and  misapprehension  of  her 


246  CASES  IN  CHANCERY. 

Skillman  and  Wife  v.  Teeple  et  al. 

rights.  Under  such  mistake,  she  signed  a  parol  agreement 
without  any  consideration,  highly  prejudicial  to  her  interests.  I 
am  of  opinion  that  that  agreement  should  be  set  aside,  a'nd  held 
void. 

It  is  charged  in  the  bill,  that  the  sale  of  the  mortgaged  premises 
to  Andrew  Howell,  was  colorable,  and  that  the  premises  were 
not  bought  by  him  in  his  own  right,  and  for  his  own  use,  but  for 
the  ultimate  benefit  of  the  said  John  Frelinghuysen  and  Thomas 
A.  Hartwell,  or  one  of  them.  To  this  charge  there  is  no  answer 
made  by  Andrew  Howell;  and  John  Frelinghuysen,  in  his  an- 
swer heretofore  quoted,  in  substance  admits  that  it  was  for  the 
benefit  of  the  creditors,  and  also  admits  his  willingness  still  to 
consider  it  a  trust  for  their  benefit.  I  am  of  opinion  that  this  sale 
should  be  set  aside  and  considered  void ;  and  that  this  honorable 
court  should  decree  accordingly. 

GEORGE  K.  DRAKE, 
Master  in  Chancery. 

MINUTES   FOR   DECREE. 

1.  It  appearing  that  the  defendants,  John  Baird  and  Joanna 
Dumont,  have  been  duly  served  with  process  of  subpo3na  to  an- 
swer, but  have  not  appeared,  plead,  answered  or  demurred  ;  and 
that  the  defendants,  "William  Teeple  and  Thomas  A.  Hartwell,  have 
appeared,  but  have  not  plead,  answered  or  demurred,  to  the  com- 
plainants' bill  of  complaint:  as  to  them,  let  the  bill  of  complaint 
be  taken  as  confessed. 

2.  That  the  agreement  bearing  date  the  16th  day  of  May,  1822, 
between    Ann   Stilwell,  and   John    Frelinghuysen    and   Andrew 
Howell,  and  also  their  agreement  entered  into  at  the  same  time,  be 
set  aside  and  made  void. 

3.  That  the  amount  due   to   the   complainants   on   their   two 
notes  or  obligations,  so  given  to  George  Vannest  as  aforesaid,  be 
and  remain  a  lien  on  the  said  mortgaged  premises,  to  be  first  paid 
next  after  the  bond  and  mortgage  so  given  to  Joanna  Dumont,  as 
aforesaid. 

4.  That  the  said  William  Teeple  restore  and  deliver  back  to 
the  said  complainants  the  two  sealed  bills  or  'promissory  notes  so 
delivered  over  by  Ann  Stilwell  to  Andrew  Howell,  as  aforesaid, 


JANUARY  TERM,  1831.  247 

Skillman  and  Wife  v.  Teeple  et  al. 

and  account  to  her  for  the  principal  and  interest  due  on  the  same, 
and  pay  the  same  to  her  accordingly. 

5.  That  the  sale  of  the  mortgaged  premises,  made  by  the  assig- 
nees of  Cooper  to  Andrew  Howell,  as  aforesaid,  be  set  aside,  made 
void,  and  for  nothing  holden. 

6.  That  a  sale  of  the  said  mortgaged  premises  be  made  under 

the  direction  of  — -,  one  of  the  masters  of  this  court, 

and  the  proceeds  thereof  paid  into  court,  to  be  appropriated  as  it 
shall  direct;  and  that  the  said  William  Teeple,  Andrew  Howell, 
John  Frelinghuysen,  and  Thomas  A.  Hartwell,  make  all  necessary 
releases  and  conveyances,  to  convey  to  the  purchaser  a  good  title  in 
the  same. 

7.  That  the  complainants  pay  their  own  costs,  but  no  costs  to 
the  defendants. 

GEORGE  K.  DRAKE, 

Master  in  Chancery. 

CITED  in  Deare  v.  Carr,  2  Gr.  Ch.  519 ;  Firmstone  v.  De  Camp,  2  C.  K  Or, 
315;  Hampton  v.  Nicholson,  8  C.  E.  Gr.  427. 


CASES    DECIDED 

IS  THE 

COURT   OF  CHANCERY 

OP  THE 

.      STATE    OF    NEW-JERSEY, 

APKIL  TEEM,  1831. 


JACOB  S.  VANNESS  v.  SIMON  VANNESS. 

Upon  a  bill  filed  in  this  court  by  a  purchaser  at  sheriff's  sale,  showing  that  the 
judgment  under  which  he  purchased  was  entered  in  the  minutes,  but  not  re- 
corded, and  the  execution  was  erroneously  described  in  the  deed;  the  sher- 
iff's deed  may  be  reformed.  But  whether  the  judgment  could  be  supplied, 
or  the  defendant  injoined  from  taking  advantage  of  the  want  of  il,  in  a  pro- 
ceeding at  law,  query. 

"Where  the  purchase  at  the  sheriff's  sale  was  made  at  the  request,  or  with  thp 
consent  of  defendant  in  execution,  and  for  his  benefit,  upon  an  express 
agreemen-t,  that  he  should  be  at  liberty  to  redeem  ;  and  complainant  was  to 
hold  such  interest  under  the  sheriff's  deed  as  would  indemnify  him  for  the 
money  advanced ;  and  the  one  intended  to  give,  and  the  other  to  receive,  a 
valid  security ;  although  it  turns  out  to  be  insufficient  in  law,  yet  the  pur- 
chaser has,  in  equity,  a  vested  lien  on  the  property  for  the  amount  of  his  de- 
mand, and  the  defendant  is  estopped  from  coming  into  this  court  and  set- 
ting up  any  defect  in  the  title. 

The  conveyance  of  the  sheriff  under  these  circumstances  is  to  be  considered  as 
the  act  of  the  defendant  himself,  and  he  shall  not  be  permitted  to  impugn  it ; 
as  between  him  and  the  purchaser  he  is  precluded. 

And  if  the  defendant  fail  to  pay,  the  property  may  be  sold  for  th<>  payment  of 
what  is  due  the  purchaser,  or  the  equity  of  redemption  of  the  defendant  fore- 
closed. 

In  this  case,  it  appears,  that  two  judgments  were  obtained 
against  Simon  Vanness,  in  the  common  pleas  of  the  county  of 
Bergen :  that  at  his  request,  Jacob  S.  Vanness  paid  the  amount 
due  thereon,  and  took  an  assignment  of  the  judgments.  Ano- 

248 


APRIL  TERM,  1831.  249 


Vanness  v.  Vannesa. 


ther  judgment  was  obtained  by  William  and  Robert  Colfax 
against  Simon  Vanness,  and  execution  issued ;  upon  which  the 
sheriff  of  Morris  advertised  and  sold  his  property.  Jacob  Van- 
ness  became  the  purchaser,  at  the  request  and  for  the  benefit  of 
Simon,  upon  an  understanding  between  them  that  Jacob  should 
take  the  sheriff's  deed  and  hold  it  as  security  for  the  money  ad- 
vanced, and  Simon  should  be  at  liberty  to  redeem  upon  repay- 
ment of  the  moneys  due  from  him  to  Jacob.  Jacob  accordingly 
paid  the  purchase  money,  and  took  the  sheriff's  deed.  Simon 
continued  to  occupy  the  premises  for  some  time,  but  failing  to 
make  payment,  Jacob  brought  an  ejectment  to  recover  the  pos- 
session. Upon  this  Simon  filed  his  bill,  setting  forth  the  facts, 
offering  to  pay  what  was  due  to  Jacob,  and  praying  that  he  might 
be  permitted  to  redeem,  and  also  for  an  injunction  to  stay  pro- 
ceedings in  the  ejectment ;  which  was  allowed.  Under  this  bill 
an  account  was  taken,  and  the  amount  due  from  Simon  to  Jacob 
ascertained  ;  but  he  failing  to  pay  the  same  according  to  the 
decree  of  the  court,  his  bill  was  finally  dismissed,  and  the  in- 
junction dissolved.  Jacob  then  attempted  to  proceed  in  the  eject- 
ment, but  discovering  that  the  judgment  on  which  the  property 
vras  sold,  although  regularly  entered,  had  not  been  recorded ; 
and  that  the  execution  was  misrecited  in  the  sheriff's  deed,  he 
filed  the  present  bill,  praying  that  the  sheriff's  deed  might  be 
reformed,  and  Simon  restrained  by  injunction  from  setting  up 
this  discrepancy  as  to  the  execution,  or  the  want  of  a  record  of 
the  judgment;  or  that  the  deed  might  be  established  as  a  lien  or 
equitable  mortgage  upon  the  premises,  and  that  the  premises 
might  be  sold,  or  the  equity  of  redemption  foreclosed.  To  this 
bill  Simon  demurred ;  and  the  cause  came  on  to  be  heard  upon 
the  bill  and  demurrer. 

T.  Frelinghuysen,  for  complainant.  The  bill  has  two  gene- 
ral objects:  1.  In  aid  of  the  ejectment  at  law,  to  reform  the 
sheriff's  deed,  or  injoin  the  defendant  from  setting  up  the  mistake 
in  reciting  the  execution,  or  the  want  of  a  record  of  the  judg- 
ment in  that  suit;  and  2.  To  establish  the  sheriff 's  deed  as  a 
mortgage  or  lien  upon  the  property,  and  that  the  premises  may 
be  sold  as  the  defendant's,  and  he  in  like  manner  injoined  from 


250  CASES  IN  CHANCERY. 

Vanness  v.  Vsnness. 

setting  up  these  mistakes  and  discrepancies.  The  state  of  facts 
to  sustain  this  equity  we  have  from  the  defendant,  Simon  Vanness 
himself,  and  sworn  to  by  him  in  his  bill  against  Jacob,  filed  in  this 
court,  for  an  injunction  against  the  prosecution  of  an  ejectment, 
which  Jacob  had  instituted  against  him.  The  facts  stated  in  that 
bill,  are,  1.  That  Robert  Colfax  and  William  Colfax,  in  1806, 
obtained  a  judgment  in  the  supreme  court  against  Simon  Van- 
ness,  the  complainant,  for  four  hundred  and  thirty-one  dollars 
and  thirty-five  cents  debt,  and  one  hundred  and  nine  dollars  and 
twenty-six  cents  cost :  2.  The  execution,  to  Edward  Condicr, 
sheriff:  3.  The  sheriff's  sale:  4.  The  embarrassment  of  the 
defendant,  his  application  to  this  complainant,  and  the  arrange- 
ment between  them,  that  this  complainant  should  advance  the 
money,  and  receive  the  sheriff's  deed  as  an  indemnity ;  that  the 
sheriff's  deed  was  given  to  this  complainant  accordingly,  on  the 
19th  May,  1807 ;  and  that  said  defendant  had  applied  for  a  re- 
conveyance. The  prayer  of  that  bill  was  for  a  reconveyance ; 
said  Simon  alleging  himself  willing  and  ready  to  account  with 
the  said  Jacob,  of  and  concerning  any  sums  of  money  intended 
to  be  secured  by  said  deed.  Such  proceedings  were  had  on  that 
bill,  that  the  sum  of  two  thousand  six  hundred  and  twenty-nine 
dollars  and  twenty-one  cents,  was  found  due  to  this  complainant, 
under  the  security  of  said  sheriff's  deed ;  and  the  court  decreed, 
that  on  the  payment  of  that  sum,  with  interest  and  costs,  this 
complainant,  Jacob  Vanness,  (who  was  defendant  in  that  case), 
should  reconvey  to  Simon ;  otherwise  the  said  Simon's  bill 
should  be  dismissed. 

Under  these  circumstances,  one  plain  condition  of  the  parties 
is  manifest:  Simon  is  the  borrower  of  money  from  Jacob,  with 
these  premises  pledged  as  security,  in  this  mode,  of  judgment, 
sheriff's  sale,  and  deed,  by  the  proposal  of  Simon  himself.  In 
this  court,  and  as  against  Simon  Vanness,  this  sheriff's  deed  is 
his  mortgage  to  us,  and  he  is  fixed  and  concluded  with  every 
fact  asserted  in  it.  This  he  would  be,  had  he  not  filed  the  bill  to 
which  I  have  alluded.  Proving  against  him,  his  application  to 
us  to  attend  the  sheriff's  sale,  and  for  his  benefit  receiving  the 
sheriff's  deed,  would  implicate  him  directly  as  a  party,  essential- 
ly connected  with  the  whole  transaction ;  and  he  would  be  estop- 


APRIL  TERM,  1831.  251 


Vanness  v.  Vanness. 


ped  in  this  court  from  disputing  any  of  the  matters,  the  existence 
of  which  was  indispensable  to  the  very  arrangement  which  he, 
Simon,  himself  proposed.  But  in  addition  to  this,  he  lias  thus 
distinctly  and  solemnly  admitted  and  affirmed  the  whole  history 
of  this  transaction,  as  set  forth  by  us. 

A  party  by  his  conduct  and  acquiescence  will,  in  equity,  be 
estopped  from  asserting  his  title,  however  good  and  valid  it  may 
be;  and  he  will  be  precluded  from  impeaching  his  title  by  raising 
technical  exceptions.  These  principles  apply  to  the  case,  as  con- 
sidering this  sheriff's  deed  as  Simon's  security  to  us :  he  proposed 
it,  and  adopted  it,  and  substantially  made  it  his  own,  and  there- 
fore he  cannot  gainsay  it:  6  Johns.  C.  R.  166.  But,  second,  he 
cannot  dispute  it,  because  he  has  in  this  court  affirmed  the  con- 
trary, sought  relief,  and  obtained  the  interposition  of  this  court 
by  way  of  injunction  ;  and  sought  and  had  a  fair  and  full  inves- 
tigation and  hearing  upon  a  state  of  facts  admitting  the  deed, 
execution  and  judgment,  and  therefore  he  cannot  now  dispute  it. 
And,  third,  it  is  an  admission  on  record,  express  and  explicit, 
and  never  can  be  recalled  or  contradicted,  especially  in  the  same 
court. 

The  rule  of  law,  that  a  party  shall  not  impugn  or  defeat  his 
own  security,  runs  through  all  contracts  ;  nay,  a  mortgagor  will 
not  be  allowed  even  to  set  up  a  valid  prior  mortgage,  when  there 
is  no  mistake  or  discrepancy,  because  i£  would  defeat  his  own  title. 
So  if  a  man  had  only  by  parol,  acknowledged  that  he  had  no  title, 
and  had  agreed  to  purchase  the  premises  of  the  sheriff,  he  shall 
not  be  permitted  to  dispute  the  sheriff's  title  after  such  acknow- 
ledgment. So  a  party  cannot  contradict  by  evidence,  what  he 
has  admitted  in  the  pleadings,  nor  can  the  jury  find  any  fact 
contrary  to  such  -admissions.  In  admissions  that  have  been  acted 
on,  the  party  is  usually  concluded  absolutely.  In  truth,  it  was 
deemed  almost  safe  to  go  on  at  law;  the  only  doubt  arose  from 
the  strictness  of  that  court,  in  requiring  a  formal  judgment,  and 
this  recital  of  the  execution  being  a  statute  regulation:  the  re- 
sult of  a  dry  rule  at  law,  was  feared  in  a  strict  court :  Bull. 
N.  P.  110,  298;  Gould's  Esp.  457;  4pt.  Starkie,  29,  30,  31; 
S  East.  R.  493,  458;  3  John.  R.  459;  6  John.  R.  499;  1 
Salk.  286. ' 


252  CASES  IN  CHANCERY. 

Vanness  v.  Vanness. 

The  equity  of  our  case  is,  therefore,  that  after  such  repeated 
recognitions  and  admissions  by  Simon  Vanness,  and  after  he  has 
induced  us,  on  the  faith  of  them,  to  act  in  this  matter,  he  shall 
not  dispute  the  existence  of  the  judgment  or  the  execution.  And 
the  rather  we  resort  to  this  court,  as,  although  the  chancellor 
might  think  that  on  this  point  we  were  in  no  danger  at  law,  yet 
we  might  still  proceed  in  equity  for  the  sale  of  these  premises : 
for  we  are  not  bound  to  take  the  deed  as  an  absolute  one.  The 
decree  in  the  case  of  Simon  v.  Jacob  Vanness,  directs  upon  what 
terms  Simon  may  have  a  reconveyance ;  but  it  leaves  Jacob  to 
all  his  remedies  on  the  sheriff's  deed  or  otherwise.  Then  we  are 
entitled  to  have  Simon  restrained  from  setting  up  these  defects  at 
law,  in  the  ejectment  or  in  any  other  suit,  under  the  authority  of 
the  sheriff's  deed,  and  the  decree  of  this  court ;  or  to  a  foreclosure  of 
the  equity  of  redemption,  or  sale  of  the  premises,  considering  the 
deed  as  an  equitable  mortgage  at  least.  And  on  the  whole,  we 
prefer  a  decree  of  foreclosure  to  that  of  sale,  and  pray  accordingly. 
Then  we  can  proceed  at  law,  without  the.  obstacles  of  this  discrep- 
ancy and  the  defect  of  a  formal  judgment  to  embarrass  us. 

8.  Scudder,  for  the  defendant.  1.  The  demurrer  denies  the 
equity  of  the  complainant's  bill ;  and  if  the  demurrer  be  well  taken, 
the  bill  must  be  dismissed  with  costs:  Harrison's  Ch.  P.  210; 
Mit/ord,  99 ;  ibid,  102. 

2.  As   to  the  two  judgments  against  Simon  Vanness,  the   de- 
fendant, in  the  common  pleas  of  Bergen  county,  which  the  com- 
plainant alleges  he  paid.     The  bill  does  not  state  the  amount  of 
these  judgments,  or  when  they  were  entered  ;  but  it  alleges  that 
when  complainant  paid   them,  and   took  an   assignment  of  the 
judgments,  he  thereby  took  the  judgments   as*  security  for  the 
money  paid  ;  and  the  fair  presumption  is,  that  there  was  property 
of  the  defendant   in   the  county  of  Bergen,  on  which  the  judg- 
ments might  have  been  executed,  or  the  complainant  would  not 
have  taken  an  assignment;  and  if  he  has  neglected  his  remedy  at 
law,  he  cannot  come  to  equity  for  relief. 

3.  The  bill  alleges  that  Edward  Condict,  then  sheriff  of  the 
county  of  Morris,  by  virtue  of  an  execution  against  goods  and 


APRIL  TERM,  1831.  253 


Vanness  v.  Vanness. 


lands,  issued  out  of  the  supreme  court  of  New-Jersey,  at  the 
suit  of  Robert  and  William  Colfax,  against  Simon  Vanness,  ad- 
vertised the  premises  in  question  to  be  sold  on  the  7th  of  May, 
1807:  that  Simon  agreed  that  Jacob  should  buy  the  lands  at  the 
sheriff's  sale,  and  that  Jacob  did  buy,  and  paid  the  money  men- 
tioned in  the  execution,  and  took  the  sheriff's  deed,  and  was  to 
hold  the  lands  subject  to- the  equity  of  redemption  still  to  be  left 
remaining  in  Simon. 

4.  That  of  the  term   of  May,  1824,  Jacob  brought  ejectment, 
to   which    Simon  appeared  ;   and  afterwards,   in    January,   1825, 
brought  his  bill  in  this  court  for  relief,  and  obtained  an  injunction 
to  stay  proceedings  in  the  ejectment;  that  Jacob  answered  his  bill ; 
that  an  account  was  taken    before  a  master,  who  reported   that 
Simon  was   indebted    to   Jacob   two  thousand   six   hundred   and 
twenty-nine  dollars  and   twenty-one   cents;   that  a   final   decree 
was  made  thereupon,  and  that  Simon  was  ordered    to  pay  that 
sum  of  money  to  Jacob  in  six  months  thereafter,  or  that  his  bill 
should  stand  dismissed  out  of  this  court  with  costs.  That  Simon  did 
not  pay  the  money  within  the  time  limited,  and  that  his  bill  was 
dismissed  and  stands  dismissed  out  of  this  court  with  costs. 

Now  the  only  evidence  before  the  court  upon  the  complainant's 
bill  in  this  case,  that  Simon  the  defendant  is  indebted  to  Jacob 
the  complainant  in  the  sum  of  two  thousand  six  hundred  and 
twenty-nine  dollars  and  twenty-one  cents,  is  the  decree  upon  the 
report  of  the  master,  confirming  that  repoYt  ;  and  by  the  com- 
plainant's own  showing,  the  bill  upon  which  that  decree  was 
made,  stands  dismissed  out  of  court;  and  consequently,  every 
thing  that  before  had  legal  form  and  effect,  was  by  the  dismissal 
of  the  bill  dissolved.  So  an  injunction,  by  the  dismissal  of  a 
bill,  is  dissolved  :  1  Harrison's  Ch.  317. 

5.  That   after   the   bill   of  Simon  was   dismissed,  then   Jacob 
proceeded  in  his  ejectment ;  and  on  search  for  evidence  to  support 
his  ejectment,  he  could  find  no  judgment  or  execution,  and  the 
complainant's  bill  expressly  charges   that   there   never  was  any 
such  judgment  or  execution. 

Now  where  is  the  complainant's  equity  ?  He  seeks  to  attach 
his  pretended  debt  to  the  lands  for  which  the  sheriff  gave  a  deed,- 


254  CASES  IN  CHANCERY. 

Vanness  v.  Vanness. 

or  to  have  the  defendant  estopped  from  setting  up,  on  the  trial  of 
the  ejectment,  the  want  of  a  judgment  and  execution,  to  support 
the  deed  made  by  the  sheriff. 

By  what  right,  or  even  color  of  right,  can  the  complainant's 
debt  attach  to  the  land  ?  The  sheriff's  deed  is  not  a  defective 
execution  of  a  power,  it  is  an  act  done  without  any  power  at  all. 
To  enable  the  sheriff  to  sell,  there  must  be  a  regular  judgment 
and  execution,  and  the  execution  must  be  recorded.  In  this  case 
there  is  neither. 

By  what  authority  does  this  court  hold  lands  bound  for  a  debt  ? 

1.  When  they  are  mortgaged   for  the  debt,  then  the   legal  title 
is  in  the  mortgagee,  and  the  equity  to  redeem  only  in  the  debtor. 

2.  When  the  purchase  money  has  not  been  paid,  and  a  subse- 
quent purchaser  knows  the  fact,  because  the  purchase  money  is 
an  equitable  lien  upon  the  land.     3.  When  there  is  an  equitable 
mortgage;  i.  e.  when  the  attending  circumstances  are  such  as  to 
show  that  the  parties  intended  to  mortgage,  then  equity  will  con- 
sider that  done  which  ought  to  have  been  done ;    but  even  then, 
the  court  must  assume  that  the  mortgage  was  made :    And  when 
a  man  has  borrowed  money  upon  an  agreement  to  mortgage,  and 
left  his  title  deeds. 

But  here  there  was  no  agreement  to  mortgage.  The  agree- 
ment was  that  the  complainant  should  take  the  sheriff's  deed  ; 
but  it  turned  out  that  the  sheriff  could  make  n6  deed,  and. 
never  did  make  any  :  for  though  he  may  have  signed  a  paper 
in  the  form  of  a  deed,  still  it  is  no  deed,  for  he  had  no  power  to 
make  one. 

There  is  nothing,  then,  to  enable  the  court  to  interfere ;  there 
is  no  fraud  on  the  part  of  the  defendant,  or  of  any  other  person 
connected  with  him.  The  inattention  of  parties  in  a  court  of 
law  can  scarcely  be  made  the  subject  of  interference  in  a  court  of 
equity  :  1  Sch.  and  Lef.  205.  The  entry  of  the  judgment  and 
the  recording  and  signing,  was  no  duty  of  the  defendant.  The 
proceeding  was  an  adverse  proceeding  against  him,  contrary  to 
his  will ;  and  though  he  may  have  supposed  there  was  a  judg- 
ment by  which  his  lands  might  be  sold  against  his  will,  still, 
there  being  no  judgment,  his  lands  remain  unaffected  by  any 
rule  of  law  or  equity. 


APRIL  TERM,  1831.  255 

Vanness  v.  Vanness. 

The  complainant  has  a  full  and  complete  remedy  at  law  ;  if  the 
defendant  owes  him  a  debt,  judgment  may  be  obtained,  aud  the 
lands  subjected  to  its  operation. 

The  court  is  asked  to  reform  the  deed.  The  answer  I  make  to 
this  is,  I  know  of  no  such  power  in  the  court.  Besides,  there  can 
be  no  deed  without  the  previous  proceedings  on  which  to  found  it ; 
and  it  will  hardly  be  pretended  that  a  court  of  equity  can  make  a 
judgment  for  a  court  of  law. 

Lastly,  the  doctrine  of  estoppel  is  set  up ;  odious  at  law,  and 
where  to  be  found  in  equity,  the  complainant's  counsel  has 
not  attempted  to  show  us :  all  his  cases  cited  are  cases  at 
law. 

They  say  that  Simon  will  not  be  permitted  to  contradict  the  title 
made  by  the  sheriff  to  Jacob,  because  by  his  bill  he  has  already 
admitted  it.  I  do  not  mean  to  say  that  Simon  could  be  allowed  to 
deny  a  fact  admitted  in  his  bill,  heretofore  dismissed,  unless  that 
fact  was  admitted  by  mistake.  But  Simon  is  not  put  to  that  neces- 
sity, for  the  complainant  expressly  states  in  his  bill,  that  there  was 
not  any  judgment  or  execution,  and  shows  that  Simon  was  mistaken 
in  what  he  said  in  his  bill.  What  the  complainant  means  when  he 
says  Simon  will  not  be  permitted  to  deny  the  title  made  by  the 
sheriff  to  Jacob,  is  difficult  to  understand.  For  the  complainant, 
by  his  bill,  expressly  states  all  those  facts  which  show  that  the 
sheriff  made  no  title,  and  could  make  no  title. 

Now  the  doctrine  of  estoppel  is,  that  where  a  man  has  admitted 
a  fact  in  a  deed,  he  shall  not  be  permitted  to  deny  the  fact,  though 
he  could  prove  it  otherwise.  But  if  his  adversary  admitted  the 
fact  to  be  otherwise,  I  believe  he  would  be  allowed  to  agree  with 
his  adversary  in  the  fact. 

I  can  see  no  reason  for  maintaining  this  bill  in  any  point  of 
view.  The  complainant,  by  his  own  showing,  exonerates  the  de- 
fendant from  fraud,  deceit,  or  any  kind  of  management.  It  is  the 
duty  of  the  purchaser  at  sheriff's  sale,  to  see  that  he  has  power  to 
sell.  Caveat  emplor  is  the  rule. 

The  parties  stand  in  the  same  situation  that  they  would  if  Ja- 
cob had  bought  at  the  sheriff's  sale  without  the  knowledge  of 


256  CASES  IN  CHANCERY. 

Vanness  v.  Vanness. 

Simon,  or  against  his  will,  except  that  Jacob,  having  paid  the  debt 
of  Simon  to  Robert  and  William  Colfax,  by  the  request  of  Simon, 
he  may  recover  it  back  at  law.  I  therefore  pray  that  the  com- 
plainant's bill  may  be  dismissed,  with  costs. 

THE  CHANCELTX>R.  It  appears  that  prior  to  the  year  1807. 
this  defendant  became  embarrassed  in  his  circumstances,  and 
•was  indebted,  among  others,  to  the  complainant,  and  particu- 
larly in  the  amount  of  two  judgments,  which  were  outstanding 
against  the  defendant,  and  which  had  been  assigned  over  to  the 
complainant  at  the  defendant's  request,  on  his  paying  the  amount 
to  the  persons  entitled.  In  May,  1807,  his  property  was  adver- 
tised to  be  sold  by  the  sheriff  of  the  county  of  Morris,  on  a  judg- 
ment and  execution  in  favor  of  William  Colfax  and  Robert  Col- 
fax.  At  the  request  of  the  defendant,  the  complainant  purchased 
the  property  at  the  sale,  and  took  a  sheriff's  deed.  It  was  ex- 
pressly agreed  that  the  defendant  might  redeem  it  on  paying 
what  was  justly  due  to  the  complainant.  The  defendant  contin- 
ued in  possession  of  the  premises  thus  purchased  for  a  number  of 
years.  And  during  this  time  the  complainant  made  further  ad- 
vances of  money  to  the  defendant,  until,  the  defendant  ultimate- 
ly refusing  to  account  for  the  moneys  received,  or  to  pay  the 
amount  justly  due,  the  complainant  instituted  an  action  of  eject- 
ment against  him  in  the  supreme  court,  in  1824,  for  the  recovery 
of  the  possession  of  the  premises  conveyed  to  him  in  the  sheriff's 
deed.  Upon  this  the  defendant  filed  a  bill  in  this  court,  setting 
out  particularly  the  facts  of  the  judgment,  the  execution,  the 
sheriff's  sale,  the  agreement  and  the  deed,  and  insisted  that  he 
was  not  indebted  on  a  just  account  being  taken,  and  that  this 
complainant  should  be  decreed  to  reconvey  the  property  to  him. 
The  complainant  was  thereupon  injoined  from  proceeding  in  the 
ejectment.  The  cause  having  been  put  at  issue,  and  testimony 
taken  on  both  sides,  came  on  to  be  heard ;  and  it  was  decided 
that  the  sheriff's  deed  was  taken  and  held  by  this  complainant  to 
secure,  save  harmless  and  indemnify  him  for  all  advancements 
made,  and  responsibilities  incurred  by  him  for  the  defendant; 
and  it  was  referred  to  a  master  to  take  an  account  of  what  was 


APRIL  TERM,  1831.  257 

Vanness  v.  Vanness. 

due,  if  any  thing,  from  the  one  party  to  the  other.  The  master 
reported  that  there  was  due  from  Simon  Vanness,  the  defendant  in 
this  cause,  to  Jacob  S.  Vanness,  the  complainant,  in  the  sum  of 
two  thousand  six  hundred  and  twenty-nine  dollars  and  twenty- 
one  cents,  for  moneys  paid  and  advanced  to  and  for  the  use  of  the 
said  Simon  Vanness,  and  which  were  to  be  secured  by  the  said 
sheriff's  deed.  This  report  was  afterwards  confirmed  ;  and  it  was 
ordered  and  decreed  that  the  said  Simon  Vanness  should  pay  the 
amount  of  it  to  Jacob  S.  Vanness -in  six  months,  and  that  upon 
such  payment,  Jacob  S.  Vanness  should  convey  the  said  land  and 
premises  contained  in  the  sheriff's  deed  to  the  said  Simon.  And 
it  was  further  ordered,  that  if  the  said  Simon  should  refuse  to  pay 
the  amount  due,  within  the  said  six  months,  that  the  injunction 
should  be  dissolved,  and  the  bill  dismissed.  He  refused  to  pay 
the  money  found  due,  and  the  injunction  was  accordingly  dis- 
solved. The  complainant  was  then  about  to  proceed  with  his 
ejectment  for  the  purpose  of  recovering  possession  of  the  property, 
when  he  discovered,  upon  examination,  that  the  judgment  on 
which  the  execution  issued,  by  virtue  of  which  the  property  was  sold, 
was  not  recorded  and  signed,  though  duly  entered  in  the  minutes 
of  the  court;  and  also  that  the  execution  was  erroneously  set  out 
and  described  in  the  said  deed.  Under  these  circumstances  he 
now  comes  into  this  court  for  relief.  He"*seeks  it  in  one  of  two 
ways;  and  prays,  either  that  the  defendant  may  be  restrained  from 
denying  the  existence  of  a  judgment,  which  in  his  own  bill  he 
admitted,  and  that  he  may  be  restrained  from  setting  up,  on  the 
trial  of  the  cause,  the  discrepancies  between  the  execution  and  the 
sheriff's  deed,  or  that  in  respect  to  them  the  sheriff's  deed  may  be 
amended ;  or,  he  prays,  that  as  the  property  has  been  declared  by 
this  court  to  be  subject  to  a  right  of  redemption,  (which  he 
acknowledges  to  be  correct,)  and  inasmuch  as  the  defendant  has 
refused  to  pay  the  amount  found  due  from  him  to  the  complainant, 
as  heretofore  ascertained  by  one  of  the  masters  of  this  court,  and  as 
the  said  amount  is  still  due,  that  the  defendant  be  decreed  to  pay 
the  same  to  the  complainant  by  some  short  day,  and  in  default 
thereof,  that  he  be  forever  debarred  and  foreclosed  of  and  from  all 
right  and  equity  of  redemption  of  and  in  the  said  lands,  if  he  have 
any  under  the  circumstances  of  the  case ;  or  otherwise,  that  the 

K 


258  CASES  IN  CHANCERY. 

Vanness  v.  Vanness. 

land  may  be  sold  for  the  payment  and  satisfaction  of  the  complain- 
ant's claim. 

To  this  bill  the  defendant  has  demurred,  and  the  case  is  submit- 
ted to  the  court. 

I  deem  it  unnecessary  to  discuss  the  question,  how  far  this  court 
might  lawfully  go  in  directing  a  court  of  law  to  dispense  with  the 
production  of  a  judgment,  which  upon  settled  principles  in  such 
courts  is  necessary  to  the  establishment  of  a  strict  legal  title.  The 
sheriff's  deed  might  be  reformed;  but  unless  the  judgment  could 
be  supplied,  or  the  party  enjoined  from  taking  advantage  of  the 
want  of  it,  the  correction  would  be  of  no  avail.  The  complainant's 
remedy  appears  to  me  to  grow  naturally  out  of  the  other  aspect  of 
the  bill.  The  purchase  was  made  originally  with  the  consent,  if 
not  at  the  request  of  the  defendant,  and  certainly  for  his  benefit. 
The  complainant  was  to  have  such  an  interest  in  the  property  as 
would  indemnify  him  for  the  money  he  had  paid,  and  for  what 
he  should  afterwards  advance.  And  he  was  to  hold  this  intere'st 
under  the  sheriff's  deed.  Such  was  the  security  offered  by  the 
defendant,  and  accepted  by  the  complainant.  Now  admitting  the 
deed  to  be  defective,  it  was  unknown  to  both  parties.  The  one 
intended  to  give,  and  the  other  to.  receive,  a  sufficient  and  valid 
security.  And  although  it  turns  out  to  be  insufficient  in  law,  yet 
the  party  has,  in  equity,  a  vested  claim  or  lien  on  the  property  for 
the  amount  of  his  demand,  and  the  defendant  is  estopped  from 
coming  into  this  court  and  setting  up  any  defect  in  the  title.  This 
conveyance  of  the  sheriff,  under  the  circumstances  presented  in  the 
bill,  is  justly  to  be  considered  as  the  act  of  the  defendant  himself, 
and  he  shall  not  be  permitted  to  impugn  it.  There  are  no  other 
parties  interested,  so  far  as  is  known  to  the  court,  and  as  between 
him  and  the  complainant,  he  is  precluded. 

And  this  places  the  matter  on  the  most  favorable  footing  for 
the  defendant.  If  the  property  is  worth  more  than  the  amount 
for  which  it  is  held,  he  will  be  at  liberty  to  redeem  it  on  payment 
of  the  sum  actually  due.  Any  other  measure  of  justice  the  de- 
fendant ought  not  to  require.  If  he  fail  to  do  so,  I  see' no  reason 
why  the  property  should  not  be  sold  for  the  payment  of  what  is 


APRIL  TERM,  1831.  259 

Gray  et  al.  v.  Fox  et  al. 

honestly  due  the  complainant,  or  the  right  of  the  defendant  entirely 
foreclosed. 

The  proper  mode  in  which  to  afford  relief,  and  also  the  mode  of 
ascertaining  the  amount,  are  matters  not  necessary  now  to  be  de- 
cided. 

Let  the  demurrer  be  overruled,  with  costs. 


SUSAN  GRAY  AND  OTHERS  v.  JACOB  R.  FOX  AND  OTHERS. 


It  is  a  rule  well  settled  in  the  English  chancery,  and  adopted  by  this  court,  that 
if  trustees  loan  money  without  dae  security,  they  are  liable  in  case  of  insol- 
vency. 

As  to  what,  is  due  security,  the  principle  to  be  extracted  from  the  English  author- 
ities is,  that  the  loaning  of  trust  monies,  and  especially  when  infants  are  con- 
cerned, on  private  or  personal  security,  is  not  a  compliance  with  the  rule  that 
requires  due  security  to  be  taken,  and  of  course,  that  such  loans  are  made  at 
the  risk  of  the  trustees. 

In  England,  a  trustee  loaning  money  must  require  adequate  real  security,  or  re- 
sort to  the  public  funds.  In  this  country  there  are  few  opportunities  for  in- 
vesting in  the  public  stocks  ;  the  slock  of  private  companies  is  not  considered 
safe,  and  investments  in  that  species  of  stock  would  scarcely  be  encouraged 
by  a  court  of  equity;  there  is  no  other  but  landed  security  that  would  come 
within  the  rule,  and  the  court  would  advise  it  to  be  taken  in  all  cases  where 
public  stock  cannot  be  had. 

John  Britton  and  Peter  Fox,  administrators  of  Arthur  Gray,  deceased,  upon  sale 
of  a  farm  of  their  intestate,  left  one  third  of  the  nett  proceeds  in  the  hands 
of  Moses  Everitt,  the  purchaser,  on  his  bond,  as  a  fund,  the  interest  whereof 
was  to  be  paid  to  the  intestate's  widow  during  life,  in  lieu  of  dower  ;  and  after 
her  death  the  principal  to  be  divided  among  her  heirs,  some  of  whom  were 
minors.  Moses  Everilt,  the  obligor,  died,  and  his  administrator  was  making 
arrangements  to  pay  off  this  bond.  Jonathan  Britton  (son  of  the  adminis- 
trator) applied  for  a  loan  of  the  money,  and  John  Brition,  with  the  know- 
ledge and  consent  of  Peter  Fox,  his  co-administrator,  assigned  the  bond  to 
William  Boss,  received  the  money  for  it,  and  loaned  this  money  to  Jonathan 
Britton  on  his  bond.  Jonathan  Britton  at  that  time  was  in  mercantile  busi- 
ness, and  reputed  to  be  in  good  credit  and  able  to  meet  his  engagements,  but 
was  not  a  man  of  substantial  property,  and  failed  two  years  afterwards,  and  a 
loss  was  sustained.  The  trustees,  in  taking  his  personal  security  and  trusting 
to  his  credit,  acted  with  a  degree  of  negligence  which  the  court  could  not 
overlook,  and  were  held  responsible  for  the  loss. 

After  this  loan  to  Jonathan  Britton,  and  before  he  failed,  the  guardian  of  some 
of  the  minor  heirs  applied  to  the  orphan's  court  to  have  the  money  better 


260  CASES  IN  CHANCERY. 

Gray  et  al  v.  Fox  et  al. 

secured,  when  John  Britton,  the  administrator,  offered  to  the  court  to  give  a 
mortgage  on  two  lots  of  land,  to  secure  the  payment  of  Jonathan  Britton'a 
bond.  Whereupon  the  court,  at  a  subsequent  term,  made  an  order  approving 
said  security,  and  ordering  "that  the  said  money  remain  on  interest,  on  the 
security  of  the  said  bond  and  mortgage,  until  otherwise  disposed  of  agreeably 
to  the  act  of  the  legislature."  This  order  is  not  in  pursuance  of  the  act  of 
l«3th  June,  1820,  (Rev.  L.  779.)  The  case  is  not  within  the  jurisdiction  of 
the  court,  and  the  order  is  no  protection  to  the  administrators. 

Although  a  farther  security  may  be  offered  after  the  loan  is  made,  and  the  court 
may  approve  that  security;  that  does  not  alter  the  principle,  or  bring  the 
case  within  the  statute. 

The  proper  course  to  be  pursued  under  the  eleventh  section  of  that  act,  is,  to 
obtain  the  leave  and  direction  of  the  court,  for  the  purpose  of  putting  out  the 
money  ;  and  not  to  put  out  the  money  first,  and  obtain  a  decree  of  confirma- 
tion afterwards. 

Adecreeof  the  orphan's  court  on  a  matter  over  which  it  has  jurisdiction,  if  fairly 
obtained,  is  not  to  be  questioned  ;  but  it  is  a  court  of  limited  powers,  and  if  it 
transcends  its  jurisdiction  its  acts  will  pass  for  nothing;  and  if  an  order  is 
obtained  by  fraud  or  misrepresentation,  it  may  be  set  aside  or  considered 

.       null. 


Arthur  Gray,  late  of  the  county  of  Hunterdon,  died  in  No- 
vember, 1812,  intestate,  leaving  real  and  personal  estate,  and 
leaving  also  a  widow  and  a  number  of  children  and  grand-chil- 
dren. Administration  of  the  personal  estate  was  committed,  in 
due  form  of  law,  to  John  Britton  and  Peter  Fox,  both  of  whom 
are  now  deceased.  The  amount  of  the  personal  estate  was  small, 
and  it  became  necessary  to  sell  the  real  property  for  the  payment 
of  debts.  An  order  for  that  purpose  was  accordingly  obtained 
from  the  orphan's  court  of  the  county  of  Hunterdon  ;  and  the  sale 
was  made  to  Moses  Everitt,  for  four  thousand  three  hundred  and 
forty  dollars  and  ten  cents.  In  October,  1814,  the  administrators 
made  a  settlement  in  the  orphan's  court,  on  which  settlement  it 
appeared  there  was  a  balance  in  their  hands  of  three  thousand 
eight  hundred  and  forty-seven  dollars  and  ninety-nine  cents.  Two 
thirds  of  this  amount  was  afterwards  paid  by  the  administrators 
to  the  different  persons  entitled,  and  the  remaining  one  third  was 
retained,  to  pay  the  interest  annually  to  the  widow  of  the  intestate, 
she  having  released  her  dower.  The  widow  being  dead,  the 
heirs  at  law  of  the  intestate  come  into  this  court  for  an  account, 
and  to  compel  payment  of  the  sums  due  to  them  respectively.  A 
part  of  the  money,  it  appears,  has  been  lost,  and  the  personal 


APRIL  TEEM,  1831.  261 

Gray  et  al.  v.  Fox  et  al. 

representatives  of  Britton  and  Fox  refuse  to  make  good  the  defi- 
ciency. 

The  complainants  charge  that  it  was  agreed  between  them- 
selves, and  the  administrators,  and  Moses  Everitt  the  purchaser, 
that  he  the  said  Moses  Everitt  should  retain  this  money  in  his 
hands,  so  that  the  interest  might  be  secured  for  the  benefit  of  the 
widow,  and  after  her  death  the  principal  be  distributed  among 
those  entitled;  and  that  in  pursuance  of  such  agreement,  Everitt, 
on  the  1st  of  May,  1814,  gave  his  bond  to  Britton  and  Fox  for 
the  said  sum:  that  Everitt  paid  the  interest  annually  up  to  1822, 
at  which  time  Britton  and  Fox  assigned  the  bond  against  Ever- 
itt to  one  William  Boss,  on  receiving  from  him  the  amount  there- 
of, and  loaned  the  money  to  Jonathan  Britton,  the  son  of  one  of 
the  administrators,  on  his  simple  bond,  without  security;  and 
that  in  December,  1822,  John  Britton  executed  a  mortgage 
to  Fox,  his  co-administrator  or  trustee,  conditioned  to  be  void  on 
payment  of  the  said  sum  by  Jonathan  Britton  :  that  a  considera- 
ble part  of  the  money  is  now  lost,  and  the  defendants  pretend 
that  they  are  not  liable  to  make  good  any  deficiency,  and  that  the 
loan  so  made  to  Jonathan  Britton  was  under  the  sanction  of  the 
orphan's  court,  in  conformity  with  the  provisions  of  the  act  of 
assembly.  The  bill  has  been  taken,  pro  confesso,  as  against  the 
representatives  of  John  Britton,  who  have.geither  appeared  nor 
answered.  An  answer  was  put  in  by  Peter  Fox  in  his  life  time. 
He  denies  expressly  the  charge  that  the  money  was  retained  in 
the  hands  of  Everitt  under  any  agreement,  such  as  is  mentioned 
in  the  bill ;  and  insists  that  Everitt  was  at  liberty  to  pay  the  bond 
when  he  might  be  able,  and  the  administrators  were  bound  to 
receive  the  money.  He  states  further,  that  the  money  remained 
in  Everitt's  hands  until  his  death,  which  was  in  1821  ;  that  it 
was  understood  in  1822  that  his  administrator  intended  by  a  sale 
of  the  real  estate,  to  raise  money  and  pay  off  the  debts  of  Ever- 
itt; that  having  an  opportunity  to  loan  the  money  to  Jonathan 
Britton,  they  assigned  the  bond  over  to  William  Boss  ;  that  his 
co-administrator,  John  Britton,  loaned  the  money  to  Jonathan 
Britton,  and  took  a  bond  payable  to  John  Britton  and  Peter  Fox, 
as  administrators  of  Arthur  Gray.  He  further  alleges,  that  the 
assignment  of  the  bond  of  Everitt  was  made  by  John  Britton,  his 


262  CASES  IN  CHANCERY. 

Gray  et  al.  v.  Fox  et  al. 

co-administrator,  without  his  knowledge  or  concurrence,  and  his 
name  was  put  to  it  as  a  matter  of  form ;  that  at  the  time  the  loan 
was  made  to  Jonathan  Britton,  he  was  considered  in  the  neigh- 
borhood and  believed  by  the  defendant  to  be  a  man  in  good  cre- 
dit ;  and  that  he  paid  two  years'  interest  on  the  bond.  The  de- 
fendant then  sets  out  a  proceeding  in  the  orphan's  court.  He 
states  that  some  time  after  the  loan  to  Britton,  and  in  the  life- 
time of  the  widow,  some  person  in  behalf  of  some  of  the  heirs  of 
Arthur  Gray,  called  on  John  Britton  to  know  the  situation  of  the 
money,  and  finding  it  loaned  out  on  personal  security,  employed 
counsel  to  make  application  to  the  orphan's  court  to  have  the 
moneys  secured  by  other  security;  that  thereupon  John  Britton, 
being  called  on  by  the  court,  offered  to  give  a  mortgage  to  his 
co-administrator  on  two  certain  lots  of  land  in  the  county  of  Huu- 
terdon,  to  secure  the  payment  of  the  said  bond  of  Jonathan  Brit- 
ton  ;  that  the  court  being  satisfied  that  such  mortgage  would  be 
an  adequate  security,  approved  thereof,. and  directed  the  money 
to  be  continued  out  at  interest  upon  the  security  of  the  bond  of 
Jonathan  Britton  and  the  said  mortgage,  and  caused  an  entry  of 
said  proceedings  to  be  made  on  the  minutes  of  the  court.  The 
defendant  admits  that  Jonathan  Britton  afterwards  proved  insol- 
vent, and  that  the  mortgages  were  an  insufficient  security;  but 
insists  that  as  the  order  of  the  court  was  in  all  things  complied 
with,  he  cannot  be  held  answerable  for  any  breach  of  trust  or 
neglect  of  duty,  and  can  only  be  made  answerable  for  the  sum 
realized  from  the  property  mortgaged  (being  the  security  taken,) 
which  he  proffers  himself  willing  to  account  for. 

John  Britton  having  died,  the  cause  was  revived  against  his 
representatives.  Witnesses  were  examined,  and  the  cause  came 
on  to  be  heard  upon  the  bill,  the  answer  of  Peter  Fox,  and  the 
proofs. 

G.  D.  Wall,  for  the  complainants. 
N.  Saxton,  for  the  defendants. 

Cases  referred  to  by  the  counsel.  1  P.  Wms.  81,  83,  141; 
241;  Pre.  Ch.  173;  Dick.  R.  329,  356;  Salk.  318;  2  Bro. 


APRIL  TERM,  1831.  263 

Gray  et  al.  v.  Fox  et  al. 

C.  C  114 ;  3  Bro.  C.  C.  73,  90,  91,  95 ;  1  Scho.  and  Lef.  341  ; 
2  Scho.  and  Lef.  242;  4  Ves.  jr.  596;  7  Ves.  186;  11  Ves.  252; 
16  Ves.  479  ;  5  John.  C.  R.  282  ;  7  John.  C.  E.  22;  19  John.  R. 
427  ;  Rev.  L.  779. 


THE  CHANCELLOR.  Very  little  evidence  has  been  taken  on 
either  side,  and  some  of  the  material  allegations  in  the  bill  and 
answer  are  not  sustained.  There  is  no  proof  to  support  the  charge 
that  the  money  was  by  the  consent  of  all  parties  to  remain  in  the 
hands  of  Everitt  until  the  death  of  the  widow,  when  the  differ- 
ent persons  interested  might  claim  their  shares,  and  it  is  express- 
ly denied  by  Fox  :  on  the  other  hand  Fox,  the  defendant,  has 
failed  to  show  that  the  transfer  of  the  bond  to  Boss  was  without 
his  privity  or  approbation.  There  is  reason  to  believe  that  the 
Everitt  bond  was  about  to  be  paid  off.  His  administrator  had  ap- 
plied for  a  sale  of  his  real  estate  to  pay  debts,  as  early  as  October, 
1821,  and  the  order  was  granted  in  February,  1822,  which  was 
before  the  transfer  and  loan  to  J.  Britton.  The  sale,  it  is  true, 
was  not  actually  made  until  March,  1823;  nor  was  the  money 
paid  to  Boss  until  1824.  The  loan  to  Jonathan  Britton  was 
with  the  knowledge  and  consent  of  both  administrators,  and  there 
is  some  evidence  in  relation  to  the  solvency  and  credit  of  Jonathan 
Britton  at  the  time,  which  will  be  adverted  to  hereafter. 

Two  questions  present  themselves  : —    "* 

1.  Was  the  conduct  of  these  trustees  such  as  ought,  on  princi- 
ples of  equity,  to  subject  them'  to  any  personal  liability,  in  case  the 
whole  or  any  part  of  this  fund  was  lost  ?     And, 

2.  If  they  are  affected  with  such  liability,  will  the  proceedings 
in  the  orphans'  court  relieve  them? 

There  does  not  appear  to  be  any  foundation  for  the  charge 
in  the  bill,  that  the  security  was  changed  from  any  sinister  or 
interested  motives  on  the  part  of  the  administrators.  I  am  wil- 
ling to  believe  that  they  honestly  thought  it  advisable  and  proper 
to  assign  the  bond  to  Boss  and  to  loan  the  money  to  some  other 
person.  If  they  are  liable  at  all,  it  is  not  on  the  ground  of  cor- 
ruption ;  it  must  be  on  the  ground  of  negligence — that  they  have 
loaned  out  the  money  without  taking  due  security,  in  consequence 
of  which  the  greater  part  of  it  is  lost. 


264  CASES  IN  CHANCERY. 

Gray  et  al.  v.  Fox  et  al. 

It  is  a  well  settled  rule  in  the  English  chancery,  that  if  trustees 
loan  money  without  due  security,  they  are  liable  in  case  of  loss 
by  insolvency.  This  is  a  safe  rule,  and  the  court  has  no  hesita- 
tion in  adopting  it.  The  duties  of  trustees  are  very  important, 
especially  where  the  rights  of  infants  are  concerned,  and  it  will 
always  be  the  pleasure  of  the  court  to  protect  them,  so  far  as  it 
may  be  done  consistently  with  safety  and  sound  policy.  Safety 
demands  that  the  conduct  of  trustees  should  be  watched  with 
scrupulous  care.  Sound  policy  requires,  that  the  faithful  steward 
should  not  be  entrapped  and  ruined  with  technicalities  and  forms. 
The  rule  above  stated,  however  valuable  as  a  general  principle 
for  the  government  of  the  court,  is  not  sufficiently  definite  to  be 
of  much  practical  use.  We  must  go  further,  and  inquire  what 
is  due  security  for  moneys  loaned  by  a  trustee?  Can  the  court 
adopt  a  general  rule,  or  must  each  case  be  left  to  be  decided  on  its 
own  peculiar  circumstances? 

A  review  of  the  cases  in  England  will  lead  us  to  the  rule  adopt- 
ed on  this  subject  by  the  court  of  chancery  there,  and  will  aid  us 
in  testing  the  propriety  of  its  adoption  here. 

In  the  case  of  Sir  Ed.  Hale  and  the  Lady  Car,  in  chancery, 
1637,  referred  to  in  3  Swans.  64,  in  notis,  the  Ld.  Keeper  says, 
if  a  person  intrusted  with  others'  moneys,  let  it  out  to  such  as  are 
trusted  and  esteemed  by  others  to  be  men  of  worth  and  ability, 
if  any  loss  happen,  he  shall  not  bear  the  loss.  In  Morley  v. 
Morley,  2  Oh.  Ca.  2  (1678,)  the  defendant  being  trustee  for  an 
infant,  was  robbed  of  forty  pounds  sterling,  and  also  of  two  hun- 
dred pounds  of  his  own  money  :  the  court  held,  he  was  bound 
only  to  keep  it  as  his  own,  and  allowed  it  to  him  in  the  account. 
And  in  Jones  v.  Lewis,  2  Ves.  210,  (1750,)  Ld.  Hardwicke  held 
the  same  doctrine.  These  cases  (the  two  last  especially)  seem  to 
go  on  the  principle  that  a  man  will  always  be  careful  of  his  own 
property ;  and  that  if  he  extends  the  same  degree  of  care  to  the 
property  of  others  in  his  hands  as  to  his  own,  he  will  be  in  no 
danger.  If  all  men  were  prudent  in  the  management  of  their 
own  affairs,  there  might  be  safety  in  adopting  this  principle  ;  but 
that  is  not  the  case,  and  hence  the  later  authorities  have  sought  to 
establish  one  more  uniform  and  stable. 

In  Adye  v.  Feuilleteau,  1   Cox,  24,  (1783,)  an  executor  had 


APRIL  TERM,  1831.  265 

Gray  et  al.  v.  Fox  et  al. 

loaned  money  on  a  bond,  and  it  was  lost.  He  was  held  personally 
liable.  Ld.  Loughborough  (sitting  as  a  commissioner  in  chancery) 
said,  it  was  quite  a  settled  point  that  an  infant's  money  could  not 
be  laid  out  on  personal  security,  and  that  no  such  investment 
of  trust  money  would  be  sanctioned  by  the  court :  and  Baron 
Hotham,  sitting  with  him,  said,  the  court  always  disapproved 
of  it.  Holmes  v.  Dring,  2  Cox,  1,  was  a  case  before  Ld.  Ken- 
yon  at  the  rolls,  in  1787.  Two  executors  lent  three  hundred 
pounds  on  a  bond  with  security.  The  obligors  were  in  very  am- 
ple circumstances  at  the  time  the  money  was  lent,  but  afterwards 
became  insolvent.  The  court  said,  that  no  rule  in  a  court  of 
equity  was  so  well  established,  as  that  a  trustee  cannot  lend  an 
infant's  money  on  private  security.  It  should  be  rung  in  the  ears 
of  every  person  who  acts  in  the  character  of  trustee.  In  Low- 
son  v.  Copeland,  2  B.  C.  C.  156,  (1787,)  Ld.  Thurlow  held  an 
executor  chargeable  with  an  outstanding  bond  debt,  because  he 
had  not  called  it  in,  though  the  defendant,  in  his  answer,  stated 
that  he  supposed  it  was  his  own  property  as  a  part  of  the  residuum 
of  the  estate,  and  that  he  had  been  so  advised.  In  Orr  v.  New- 
ton, 2  Cox,  274,  (1791,)  Ld.  Camden  disapproved  this  case,  and 
considered  it  too  strict ;  but  it  appears  to  be  sustained  by  subse- 
quent decisions.  Wilks  v.  Steward,  Coop.  Eq.  Rep.  6,  (1801), 
is  a  very  strong  and  decided  case,  and  shows  the  determination 
of  the  court  to  abide  by  some  safe  and  gefteral  principle,  rather 
than  trust  to  the  judgment  of  trustees  in  every  case.  Testator 
directed  his  executors  to  lay  out  a  legacy  in  the  funds,  or  "  on  such 
other  good  security  as  they  could  procure  and  think  safe."  Sir 
William  Grant,  master  of  the  rolls,  was  clearly  of  opinion  that  the 
executors  had  no  power,  even  under  this  direction,  to  place  out 
the  money  on  personal  security.  This  was  followed  by  a  still 
more  rrgorous  case:  Powell  v.  Evans,  5  Ves.  jr.,  844,  (1801.) 
Testator  died  in  1792.  Part  of  his  estate  was  out  on  real,  and 
part  on  personal  security.  Three  hundred  pounds  was  loaned 
by  the  testator  himself  to  one  Price,  and  Roberts  as  his  surety. 
The  debts  were  paid,  there  were  no  legacies  due,  and  there  ex- 
isted no  necessity  for  calling  in  the  money  ;  and  the  interest  being 
regularly  paid  up  to  1795,  the  executor  permitted  the  money  to 
remain  where  it  had  been  placed  by  the  testator  and  where  he 


266  CASES  IN  CHANCERY. 

Gray  et  al.  v.  Fox  et  al. 

found  it.  In  April,  1796,  Price,  the  principal,  proved  bankrupt, 
and  the  security  was  unable  to  pay.  The  master  of  the  rolls  held, 
that  where  infants  are  concerned,  trustees  are  not  to  permit  money 
to  remain  on  personal  security ;  and  they  were  charged  with  the 
loss.  This  was  followed  by  the  case  of  Vigrass  v.  Binfield,  decided 
by  the  vice-chancellor  in  1818,  3  Had.  40;  in  which  it  was  ex- 
pressly ruled  to  be  improper  for  an  executor  to  loan  money  on  a 
promissory  note;  and  it  was  ordered  to  be  paid  into  court. 

In  opposition  to  these  very  decided  authorities,  there  is  but  one 
express  decision  that  I  have  met  with,  and  that  is  the  old  case  of 
Harden  v.  Parsons,  1  Eden,  145 ;  in  which  Ld.  Northington  says, 
that  lending  trust  money  on  a  note  is  not  a  breach  of  trust,  without 
other  circumstances  crassce  negligentioz.  In  support  of  his  opinion 
he  cites  the  case  of  Rider  v.  Bickerton,  in  1743;  but  when  that 
case  is  examined,  as  given  in  3  Swans.  80,  in  notis,  it  does  not  sus- 
tain his  position.  This  decision  of  Ld.  Northington  has  long  been 
repudiated  ;  and  in  the  late  case  of  Walker  v.  Simons,  3  Swans. 
1,  (1818,)  Ld.  Eldon  disapproved  it  in  marked  terms,  and  said  it 
was  different  from  the  doctrines  on  which  the  court  was  accustomed 
to  proceed. 

The  principle  to  be  extracted  from  these  authorities  is,  that 
the  loaning  of  trust  money,  and  especially  where  infants  are  con- 
cerned, on  private  security,  is  not  a  compliance  with  the  rule 
that  requires  due  security  to  be  taken,  and  of  course,  that  such 
loans  are  made  at  the  risk  of  the  trustee.  The  decisions  for  the 
last  half  century  have  been  uniform  on  this  point,  and  the  law, 
therefore,  may  be  considered  as  settled  at  Wesminster  Hall.  And 
it  appears  to  me  that  the  rule  is  a  safe  one,  not  only  as  it  regards 
the  cestui  que  trust,  but  the  trustee  also.  There  is  a  risk  to  the 
eestui  que  trust,  even  when  investments  are  the  most  carefully 
and  securely  made  in  the  stocks  or  on  landed  security.  Stocks 
are  liable  to  great  depression.  The  abundance  or  scarcity  of  the 
circulating  medium  in  a  community,  and  the  prospects  of  peace 
or  war,  to  say  nothing  of  the  agitations  caused  by  the  spirit  of 
restless  and  unprincipled  speculation,  are  constantly  causing  a 
fluctuation  in  the*  stocks.  So,  in  like  manner,  lands  are  liable  to 
depreciate  from  similar  causes,  though  not  in  so  great -a  degree. 
Losses  occasioned  by  a  fall  of  stocks  are  to  be  borne,  it  has  been 


APRIL  TERM,  1831.  267 

Gray  et  al.  v.  Fox  et  al. 

decided,  by  the  cestui  que  trust ;  and  I  presume  the  same  rule 
would  be  applied  to  a  loss  growing  out  of  a  depreciation  of  real 
property,  where  the  investments  had  been  originally  made  with 
due  and  proper  caution.  But  the  risk  is  greatly  increased  when 
trustees  are  permitted  to  loan  out  money  on  personal  security,  and 
to  be  free  from  responsibility  in  all  cases  where  the  borrower  waa 
at  the  time  a  man  in  good  credit.  No  person  is  exempt  from  mis- 
fortune. The  man  who  is  to-day  solvent,  and  even  in  affluence, 
may  by  some  sudden  and  desolating  visitation,  be  in  poverty  to- 
morrow ;  and  if  not  so,  he  has,  in  consequence  of  there  being  no 
lien  on  his  property,  the  power  of  disposing  of  it  to  answer  sudden 
emergencies  and  pressing  calls.  And  how  often  does  it  happen 
that  the  integrity  of  a  man  fails  in  the  hour  of  temptation,  and  he 
is  induced  to  make  dispositions  of  his  property  which  neither  honor 
nor  conscience  can  justify. 

The  rule  is  also  a  safe  one  for  the  trustee.  It  cannot  be  mis- 
understood ;  and  being  uniform  and  general,  renders  the  path  of 
his  duty  plain.  It  would  ofttimes  relieve  him  from  the  importu- 
nity of  those  who  may  wish  to  be  obliged,  and  who  may  suppose 
they  have  personal  claims  upon  him,  but  cannot  give  the  proper 
security. 

But  though  the  principle  appears  to  be  so  firmly  settled  in 
England,  I  do  not  find  that  it  has  been  adopted  to  the  same  extent 
in  this  country. 

In  Smith  v.  Smith,  4  Johns.  C.  281,  the  question  came  up 
incidentally  before  Chancellor  Kent.  As  the  case  appeared  before 
him  he  was  not  called  on  to  decide  it,  but  he  gave  his  sanction  to 
the  doctrine,  that  a  trustee  loaning  money  must  require  adequate 
real  security  or  resort  to  the  public  funds,  so  far  as  to  express  him- 
self satisfied  that  it  was  a  wise  and  excellent  general  rule. 

In  1824,  the  case  of  The  Administrators  of  Richard  I. 
Cooper  v.  The  Executors  of  Isaac  Cooper,  was  decided  in  New- 
York  by  Chancellor  Sanford :  Hop.  233.  It  appeared  that  Isaac 
Cooper  held  two  notes  of  one  thousand  two  hundred  and  fifty 
dollars  each,  given  by  the  Union  Cotton  Manufactory  to  Richard 
I.  Cooper.  He  held  them  in  trust  for  the  representatives  of  Rich- 
ard, and  afterwards  invested  them  in  stock  of  the  Otsego  Cotton 
Manufactory,  which  became  insolvent.  The  defendant  alleged 


268  CASES  TN  CHANCERY. 

Gray  et  al.  v.  Fox  et  al. 

that  the  investment  was  made  in  good  faith,  and  was  considered 
by  all  to  be  advantageous  at  the  time.  The  case  came  up  on 
the  bill  and  answer,  and  the  court  decided  the  trustee  was  not 
chargeable.  The  case  does  not  appear  to  have  received  much 
attention  from  the  counsel  or  the  court.  The  executor  found  the 
investment  in  one  company;  he  changed  it  to  another;  and  it 
'appears  by  the  very  short  opinion  of  the  chancellor,  that  this 
change  was  considered  by  all  to  be  advantageous.  This  may  be 
taken  as  tantamount  to  an  agreement  on  the  part  of  those  con- 
cerned ;  though  it  does  not  appear  that  the  court  put  itself  on  that 
ground,  but  rather  on  the  principle  of  good  faith  in  the  trustee. 

I  am  not  able  to  ascertain  that  the  English  rule  has  ever 
been  adopted  in  this  court,  and  I  should  feel  some  hesitancy 
in  adopting  it  to  the  extent  to  which  it  is  carried  in  their 
courts.  The  situation  of  the  two  countries  differs  very  materially 
in  many  respects,  and  especially  as  it  regards  the  facility  of  in- 
vestments;  and  what  may  be  a  prudent  rule  of  policy  in  one 
country,  may  not  be  in  another.  In  England,  property  can  al- 
ways be  invested  in  the  funds.  These  are  recognised  by  their 
courts  as  safe  and  permanent  securities,  and  it  is  the  policy  of 
every  branch  of  the  government  to  consider  them  so.  In  this 
country,  the  amount  of  public  or  government  sfock  is  very 
small,  and  in  an  inland  state  like  our  own,  there  are  few  oppor- 
tunities for  investing  in  that  kind  of  security.  The  stock  of  pri- 
vate companies  is  not  considered  safe,  and  investments  in  that 
species  of  stock  would  scarcely  be  encouraged  by  a  court  of  equi- 
ty. There  is,  then,  no  other  but  landed  security  that  would  come 
within  the  rule.  This  can  most  generally  be  attained,  and  the 
court  would  advise  it  to  be  taken  in  all  cases  where  public  stock 
cannot  be  procured.  It  is  safe  to  all  parties,  and  is  in  accordance 
with  the  policy  of  the  act  directing  the  mode  in  which  the  money 
of  infants  in  the  hands  of  trustees  may  be  put  out  to  interest. 

But  while  I  take'this  opportunity  of  commending  the  safety  of 
the  English  rule,  and  of  warning  trustees  how  they  deal  with 
the  property  of  infants  without  securing  it  on  real  estate  or  in 
the  funds,  I  do  not  feel  myself  called  on,  in  this  case,  to  adopt 
it  in  its  rigor.  For,  admitting  that  these  trustees  had  right  to 
loan  this  money  on  personal  security,  still,  an  examination  of  the 


APRIL  TERM,  1831.  269 

Gray  et  al.  v.  Fox  et  al. 

case  has  led  me  to  the  conclusion,  that  in  making  this  loan,  they 
did  not  exercise  that  degree  of  care  and  circumspection  which  will 
free  them  from  liability  in  case  of  loss. 

It  appears,  in  the  first  place,  that  the  loan  was  made  to  Jona- 
than Britton  on  his  simple  bond,  without  even  any  personal  se- 
curity'. 

At  this  time  Jonathan  Britton  was  a  trading  man  ;  he  was  en- 
gaged in  the  lumber  business,  and  was  about  to  engage  in  mer- 
cantile pursuits,  of  all  others,  perhaps,  the  most  hazardous,  espe- 
cially to  the  inexperienced.  This  should  have  induced  great 
caution  on  the  part  of  the  trustees.  They  should  have  hesitated 
long,  before  they  committed  to  his  hands,  at  that  time,  and  un- 
der those  circumstances,  so  large  a  sum  of  money  :  and  it  is  to  be 
considered,  also,  that  this  loan  was  not  temporary,  for  sixty  or 
ninety  days,  but  was  intended  as  a  permanent  investment. 

Secondly,  They  neglected  to  avail  themselves  of  the  privilege 
granted  them  by  law,  of  putting  out  this  money  under  the  sanc- 
tion of  the  orphan's  court. 

I  do  not  mean  to  say  that  when  trustees  omit  to  avail  them- 
selves of  that  protection,  they  are  always  to  be  held  liable : 
I  am  not  called  on  now  to  affirm  or  deny  that  principle.  I  only 
mean  to  say,  that  the  omission  to  procure  such  direction,  is  a 
species  of  negligence  that  must  always  have  its  weight.  But, 

Thirdly,  The  defendants  have  failed  tok  show  that  Jonathan 
Britton  was,  at  the  time  of  the  loan,  a  man  of  such  property  and 
substance  as  would  justify  the  loan  :  nay,  I  think  the  contrary  is 
plainly  to  be  inferred  from  the  evidence. 

The  testimony  is  not  as  full  on  this  subject  as  it  might  have 
been.  One  of  the  witnesses,  William  Robertson,  says,  that  about 
the  time  Britton  got  the  money,  "  his  credit  was  very  fair  as  to 
his  ability  to  meet  his  engagements."  It  may  all  be  true,  that 
he  was  reputed  to  be  able  to  meet  his  engagements ;  yet  the  safe 
inquiry  for  the  trustees  to  make,  was,  what  is  his  property,  and 
what  are  his  means  of  securing  a  repayment?  We  find  from  the 
testimony  of  this  witness,  that  his  credit  soon  began  to  fail.  In 
1822,  he  commenced  store-keeping,  in  the  fall.  In  1823,  he 
removed  to  another  stand  ;  and  in  the  former  part  of  that  year, 
he  did  a  good  deal  of  business,  and  was  in  good  credit ;  but  be- 


270  GASES  IN  CHANCERY. 

Gray  et  al.  v.  Fox  et  al. 

fore  the  end  of  the  year  his  credit  began  to  decline,  and  people 
became  doubtful  of  him.  And  when  we  look  at  the  exhibition 
made  of  his  concerns  by  the  sheriff  of  the  county,  soon  after,  it 
is  not  surprising.  It  is  proved  that  in  1823,  he  was  prosecuted 
by  the  New-Hope  Delaware  Bridge  Company,  and  that  in  Octo- 
ber of  .the  same  year,  a  judgment  in  their  favor  was  entered 
against  him  for  one  thousand  four  hundred  and  thirty-two  dollars 
and  fifteen  cents,  on  which  an  execution  issued  and  was  placed  in 
the  hands  of  the  sheriff.  In  February,  1824,  another  judgment 
was  entered  against  him,  in  favor  of  Peter  I.  Nevius,  for  two 
hundred  and  sixty-three  dollars  and  thirty-seven  cents.  His  real 
estate  appears  to  have  been  mortgaged  for  more  than  its  value. 
A  suit  was  brought  on  the  mortgage,  and  in  October,  1824,  an 
execution  issued  out  of  this  court  against  the  property,  for  one 
thousand  two  hundred  and  eighteen  dollars  and  ten  cents.  The 
mortgaged  premises,  when  sold,  brought  but  eight  hundred  dol- 
lars ;  while  the  amount  realized  by  the  sheriff  from  all  the  rest  of 
his  property,  when  sold,  was  less  than  two  hundred  dollars. 

There  is  nothing  to  induce  the  belief  that  in  the  years  1822 
and  1823,  he  parted  with  any  valuable  property,  nor  is  his  speedy 
insolvency  in  any  way  accounted  for. 

I  think  the  manifest  inference  from  these  facts  is,  that  Jona- 
than Britton,  at  the  time  the  loan  was  made,  was  not  a  man  of 
substantial  property ;  and  that  a  little  inquiry  would  have  satisfied 
the  trustees  of  the  real  state  of  his  affairs.  These  inquiries  were 
not  made:  they  trusted  simply  to  the  credit  of  the  person  with 
whom  they  were  dealing,  and  in  so  doing,  acted  with  a  degree  of 
carelessness  andT  negligence  which  this  court  cannot  overlook. 

It  does  appear  to  me,  that  under  these  circumstances,  the  trus- 
tees can  have  no  reason  to  complain,  if  they  are  held  responsible 
for  the  loss. 

The  administrators,  then,  are  to  be  charged,  unless  they  are  pro- 
tected by  the  proceedings  of  the  orphan's  court ;  and  this  brings 
me  to  the  remaining  question  in  the  cause. 

The  answer  states,  that  after  the  loan  to  Jonathan  Britton, 
Edmund  Smith,  who  is  guardian  for  a  number  of  the  infant 
heirs  of  Arthur  Gray,  was  dissatisfied,  and  employed  counsel  to 
make  application  to  the  orphan's  court  to  have  the  money  better 


APRIL  TERM,  1831.  271 


Grav  et  al.  v.  Fox  et  al. 


secured:  -that  Britten,  one  of  the  administrators,  hearing  of  the 
proposed  application,  attended  the  court  in  October,  1822,  and, 
being  called  on  to  have  the  said  money  secured  by  such  sufficient 
security  as  the  court  should  approve,  offered  to  give  a  mortgage 
to  his  co-administrator  to  secure  the  payment  of  Jonathan  Brit- 
ton's  bond  :  that  the  application  was  postponed  to  a  special  term 
of  the  ccurt  in  December,  at  which  time  Britton  again  attended, 
and  prayed  the  direction  of  the  court  in  the  premises.  The  court 
thereupon  made  the  following  order  substantially,  stating  it  to  be 
"on  the  application  of  the  administrators  of  Arthur  Gray."  It 
appearing  to  the  court  that  the  trust  money  had  been  loaned  by 
the  administrators  to  Jonathan  Britton,  on  his  bond  ;  and  the  said 
John  Britton  (the  administrator)  now  offering  to  give  a  mortgage 
to  his  co-administrator,  on  certain  property,  to  secure  the  pay- 
ment of  the  said  money,  and  praying  the  approbation  of  the  court 
thereupon  ;  the  court,  on  consideration,  approve  the  said  security, 
and  order  that  the  said  money  remain  on  interest  on  the  security 
of  the  said  bond  and  mortgage,  until  otherwise  disposed  of,  agree- 
ably to  the  act  of  the  legislature.  This  order  of  the  orphan's 
court,  is  set  up  by  the  defendant  as  a  bar  to  all  claims  of  the 
plaintiffs. 

The  orphan's  courts  are  authorized  to  require  executors  and 
trustees  to  give  security  to  persons  interested,  and  also  to  one  an- 
other, in  certain  cases  specified  in  the  act,  and  they  are  also  au- 
thorized to  give  leave  and  direction  to  them  to  put  out  their  mi- 
nors' money  to  interest,  upon  security  such  as  they  shall  allow  of : 
Rev.  Laws,  778-9.  From  the  history  of  this  proceeding  in  the 
orphan's  court,  given  by  the  complainant,  and  from  the  decree 
entered  by  the  court  itself,  I  have  been  at  a  loss  to  ascertain  what 
was  the  actual  intention  of  the  court.  The  proceeding  appears  to 
have  originated  with  some  of  the  heirs,  who  had  fears  for  the 
safety  of  the  money,  and  it  is  evident  that  it  was  originally  an 
adversary  proceeding.  The  defendant  says,  that  Britton  attend- 
ed at  the  court  in  October,  and  being  called  on  to  have  the  said 
moneys  secured  by  such  security  as  the  court  should  approve,  he 
offered  to  give  a  mortgage  to  the  defendant :  on  the  other  hand, 
the  decree  purports,  on  the  face  of  it,  to  be  on  application  of  the 
administrators  of  Arthur  Gray.  If  made  on  such  application,  it 


272  CASES  IN  CHANCERY. 

Gray  et  al.  v.  Fox  et  al. 

must  have  been  under  the  eleventh  section  of  the  act :  Rev,  L. 
779.  This  section  provides,  "that  executors,  administrators,  trus- 
tees or  guardians,  may,  by  leave  and  direction  of  the  orphan's 
court,  put  out  their  minors'  money  to  interest,  upon  such  security 
and  for  such  a  length  of  time,  as  the  said  court  shall  allow  of," 
&c.  It  is  insisted  on  by  the  defendant,  that  the  court  acted  under 
this  section,  and  that  their  order  is  final  and  conclusive.  The  de- 
cree of  the  orphan's  court  on  a  matter  over  which  it  has  jurisdic- 
tion, if  fairly  obtained,  is  certainly  not  to  be  questioned  in  a  col- 
lateral way  even  in  this  court.  But  that  court  is  one  of  limited 
power  and  jurisdiction.  If  it  transcend  its  jurisdiction,  its  acts 
will  pass  for  nothing ;  and  if  an  order  is  obtained  by  fraud  or 
misrepresentation,  it  may  be  set  aside  or  considered  null.  Now, 
under  the  eleventh  section,  the  orphan's  court  may  give  leave  and 
direction  to  trustees,  &c.  to  put  out  their  minors'  money.  It  does 
not  appear  that  in  this  case  any  leave  was  obtained,  or  any  direc- 
tion asked  of  the  court  to  put  out  this  money.  On  the  contrary,  it 
appears  that  the  investment  was  made  some  months  before,  and 
without  any  directions  for  that  purpose  either  obtained  or  asked. 
The  administrators  assumed  the  responsibility  themselves.  This 
they  had  a  right  to  do  if  they  chose  :  I  do  not  say  it  was  proper 
for  them  to  do  so.  In  cases  coming  under  the  act,  trustees  may 
take  the  responsibility  of  loss  upon  themselves,  or  they  may  throw 
it  on  the  court.  If  the  latter  course  is  pursued,  the  directions  of 
the  statute  are  plain.  They  must  obtain  leave  and  direction  for 
the  purpose  of  putting  out  the  money ;  not  put  out  the  money 
first,  and  at  some  future  day,  when  difficulties  are  foreseen  or  loss 
apprehended,  go  to  the  court  and  obtain  a  decree  of  confirmation. 
No  such  power  is  given  to  that  court;  nor  have  the  administrators 
or  trustees  any  authority,  under  the  statute,  to  make  such  applica- 
tion. This  may  appear  to  be  a  rigid  and  harsh  construction  of 
the  act,  and  I  confess  it  appears  so  at  first  sight ;  but  I  think  a 
moment's  reflection  will  satisfy  us  of  the  propriety,  if  not  neces- 
sity, of  construing  the  power  of  the  orphan's  court  in  this  re- 
spect strictly.  It  was  doubtless  the  intention  of  the  legislature 
that  the  trustee,  in  putting  out  minors'  money,  should  be  impli- 
citly governed  by  the  direction  of  the  court.  In  all  such  cases,  the 
court  derives  its  information  mostly  from  the  representations  of  the 


APRIL  TERM,  1831.  273 

Gray  et  al.  v.  Fox  et  al. 

trustees  themselves,  who  can  or  ought  to  have  no  possible  tempta- 
tion to  impose  upon  the  court.  One  common  motive  should  govern 
all — -that  the  minor's  money  should  be  safely  invested.  But  so 
construe  this  statute  as  that  trustees  may  invest  money  at  their  own 
risk,  and  at  any  time  afterwards  come  before  the  court  to  seek  a 
confirmation  which  shall  shelter  them  from  all  danger,  and  be 
conclusive  upon  the  rights  of  those  who  are  not  able  to  be  heard, 
and  who  are  reposing  in  the  security  afforded  by  the  wholesome 
provisions  of  the  law,  and  we  place  them  before  the  court  in  a  very 
suspicious  attitude.  Their  object  for  coming  there  will  be  their 
own  safety  alone,  and  not  that  of  the  fund.  You  place  them  under 
strong  temptations,  such  as  many  men  are  not  able  to  resist;  and 
any  one  who  is  conversant  with  the  ordinary  mode  of  doing  busi- 
ness in  that  court  must  be  satisfied  that  the  greatest  imposition 
would  often  be  practiced,  and  the  grossest  frauds  committed.  I 
feel  satisfied,  therefore,  to  say  that  this  order  is  not  made  in  pur- 
suance of  any  authority  vested  in  the  court,  and  not  within  its 
jurisdiction,  and  therefore  is  no  protection  to  the  administrators. 

It  is  true  that  in  this  case  the  court  did  more  than  merely  con- 
firm the  loan — they  approved  of  the  security  that  was  offered. 
This  does  not  alter  the  principle.  Would  the  court,  if  the  money 
had  been  in  the  hands  of  the  administrators,  have  directed  a  Joan 
to  Jonathan  Britton  at  that  time,  on  such  security?  I  think  not: 
but  the  money  was  already  loaned,  and  the  court  appeared  willing 
to  do  something  to  save  it. 

As  between  the  two  administrators,  Britton  and  Fox,  I  see  no 
ground  for  any  distinction.  They  both  concurred  in  the  loan,  and 
the  liability  is  joint. 

Let  an  account  be  taken  of  the  principal  and  interest  due  the 
complainants.  The  question  of  costs,  and  all  further  equity  and 
directions,  are  reserved  until  the  coming  in  of  the  master's  report. 

CITED  in  Shepherd  v.  Newkirk,  1  Zab.  309 ;  Slack  v.  Wtall,  1  Slockt.  586  ;   Free- 
land  v.  Yreeland,  1  C.  E.  Gr.  530. 

8 


CASES  IN  CHANCERY. 


King  v.  Morford  et  al. 


JOSEPH  KING  v.  JARRET  MORFORD,  JOHN  PINTARD,  AND  JONA- 
THAN  McCLAIN. 


In  decreeing  specific  performance  of  agreements,  the  court  is  bound  to  see  that 
it  really  does  that  complete  justice  which  it  aims  at,  and  which  is  the  ground 
of  its  jurisdiction. 

If  the  claim  for  a  deed  is  not  just  and  reasonable;  if  the  party  has  beemgrossly 
negligent  of  his  rights,  or  has  abandoned  his  contract,  equity  will  not  afford 
him  relief. 

Delay,  amounting  to  apparent  negligence,  may  be  explained  ;  and  under  special 
circumstances,  as  where  there  is  a  difficulty  about  the  title,  it  presents  no  bar 
to  relief  in  this  court. 

M.,  in  1822,  enters  into  articles  of  agreement  with  K.,  to  sell  him  a  house  and 
lot  and  one  fourth  of  a  wharf,  for  six  hundred  dollars,  "  to  be  paid  in  one 
year,  upon  receiving  a  good  title."  K.  enters  into  possession  of  the  premises, 
but  is  soon  after  ousted  of  the  wharf  by  P.,  claiming  under  an  adverse  title ; 
upon  which  M.  brings  an  ejectment  against  P.  to  recover  possession  of  the 
wharf;  and  the  contract  for  the  sale  by  M.  to  K.  remains  unexecuted  until  1829, 
when  K.  tenders  the  money  to  M.  and  demands  a  deed.  K.  has  not  forfeited 
the  privilege  of  coming  into  this  court,  for  a  specific  performance,  by  the 
mere  lapse  of  time. 

If  M.,  after  entering  into  the  agreement  to  sell  to  K.,  sells  and  conveys  the  same 
property  to  "P.  and  C. ;  who,  before  they  purchased,  had  been  told  "  that  M. 
had  sold  the  premises  to  K. — that  K.  had  purchased  it,  and  had  an  article 
for  it;"  P.  and  0.  do  not  stand  in  the  situation  of  bona  fide  purchasers  without 
notice,  entitled  to  the  special  favor  of  the  court:  having  purchased  the  title 
of  M.,  with  notice  of  at  least  some  claim  on  the  part  of  K.,  they  stand  in  no 
better  situation  than  M.  himself,  and  must  stand  or  fall  by  the  merits  of  the 
case,  as  it  exists  between  M.  and  K. 

A  written  contract  for  the  sale  of  real  estate  may  be  waived  by  parol. 

Where  M.  leased  a  house  and  lot  to  K.  for  one  year,  at  thirty-five  dollars  rent, 
and  afterwards  entered  into  an  agreement  to  sell  the  house  and  lot,  and  one 
fourth  of  a  wharf,  to  K. ;  and  thereupon  K.  pays  M.  thirty-five  dollars,  upon 
an  understanding  "that  it  was  to  be  considered  part  of  the  purchase  money, 
provided  the  residue  was  paid  in  one  year;  if  not,  it  was  to  go  as  one  year's 
rent,  at  the  option  of  K.:"  If  K.  afterwards  agree  that  the  thirty-five  dol- 
lars thus  paid  should  be  taken  as  rent,  and  with  his  consent  it  is  endorsed  on 
the  article  by  M.  as  received  for  one  year's  rent;  it  operates  as  an  abandon- 
ment of  the  contract  to  purchase,  and  there  can  be  no  pretence  for  a  specific 
performance. 

So  if  K.,  after  the  written  agreement  with  M.  for  the  purchase  of  the  pro- 
perty, in  a  conversation  with  M.  and  A.,  says,  "that  lie  does  not  want  the 
property — that  he  is  willing  M.  should  sell  it  to  A. — that  he  would  as  lieve 


APRIL  TERM,  1831.  275 

King  v.  Morford  et  al. 

A.  should  have  it  as  any  one ;"  this  is  an  express  abandonment  of  the  con- 
tract to  purchase,  and  though  A.  does  not  purchase,  M.  may  sell  it  to  an- 
other. 


The  bill  in  this  case  is  filed  for  a  specific  performance  of  a 
contract  entered  into  on  the  10th  day  of  January,  1822,  between 
Jarret  Morford  of  the  one  part,  and  Joseph  King  of  the  other 
part,  for  the  purchase  and  sale  of  a  house  and  lot  of  land  at  Red 
Bank,  in  the  county  of  MOD  mouth,  and  also  one  equal  fourth 
part  of  the  landing  at  the  said  Red  Bank,  for  the  consideration 
of  six  hundred  dollars,  to  be  paid  "on  the  receipt  of  a  good  title." 
King  complains,  that  after  making  the  contract,  he  went  into  pos- 
session of  the  property ;  that  he  occupied  the  landing  at  Red 
Bank  until  he  was  forcibly  expelled  therefrom,  and  his  vessel  set 
adrift,  by  John  Pintard  and  Jonathan  McClain,  who  were  in 
possession  of  the  other  three  parts  of  said  lauding,  and  who  have 
since  that  time  kept  possession  of  the  whole;  that  he,  King,  has 
ever  since  the  agreement  been  in  possession  of  the  house  and  lot, 
under  the  contract:  that  he  has  at  all  times  been  ready  and  de- 
sirous to  comply  with  his  part  of  the  agreement,  and  pay  the 
purchase  money,  but  that  the  said  Morford  has  neglected  and 
refused  to  make  and  deliver  a  good  and  sufficient  title  for  the  said 
premises,  although  the  complainant  has  tendered  to  him  in  specie 
the  amount  due;  and  that  afterwards,  to  wit,  in  December,  1828, 
Morford  sold  the  premises  to  Pintard  and'*McClain,  the  other 
defendants,  who  are  endeavoring  to  obtain  possession  by  eject- 
ment. The  bill  prays  for  specific  performance,  an  account,  and 
an  injunction. 

The  defendant,  Morford,  by  his  answer  admits  the  execution 
and  contents  of  the  article  of  agreement,  as  set  forth  by  the  com- 
plainant; but  alleges,  that  before  the  execution  of  the  article,  he 
had  agreed  with  the  complainant  to  lease  to  him  the  house  and 
lot,  for  thirty-five  dollars  for  one  year;  and  that  after  the  execu- 
tion of  the  said  articles  of  agreement,  the  complainant  paid  to 
him  the  sum  of  thirty-five  dollars,  which  was  to  be  considered  as 
part  of  the  consideration  money,  provided  the  residue  was  paid 
in  one  year;  but  if  the  complainant  did  not  comply  with  the  said 
articles  by  paying  the  money  in  one  year,  which  it  was  at  his 
option  to  do,  then  the  said  sum  of  thirty-five  dollars  was  to  be 


276  CASES  IN  CHANCERY. 

King  v.  Morford  et  al. 

considered  and  go  as  one  year's  rent  of  the  said  premises.  That 
afterwards,  on  the  15th  January  of  the  same  year,  the  said  com- 
plainant desired  that  the  sum  thus  paid  should  be  deemed  and 
taken  as  a  year's  rent ;  and  that  accordingly  the  same  was  en- 
dorsed on  the  article,  with  the  permission  and  consent  of  the  com- 
plainant, as  received  for  one  year's  rent.  That  the  complainant 
remained  in  the  next  year,  also  under  an  agreement  to  pay  rent ; 
and  that  during  all  that  time  the  complainant  never  offered  to  pay 
the  consideration  money,  nor  did  he  demand  a  deed ;  but  was 
considered  by  the  defendant  as  having  abandoned  the  agreement 
and  holding  as  a  tenant  from  year  to  year.  That  the  complain- 
ant afterwards  agreed  that  the  defendant  might  sell  the  property 
to  one  James  Appleby,  who  afterwards  declining  to  purchase,  the 
defendant  sold  it  to  the  other  defendants,  Pinfard  and  McClain, 
for  six  hundred  and  thirty  dollars.  A  deed  was  accordingly  given 
and 'executed,  and  it  has  been  duly  recorded.  As  to  the  tender 
of  the  purchase  money,  the  defendant  says,  that  on  the  18th 
April,  1829,  after  the  deed  was  made  to  Phitard  and  McClain, 
the  complainant  invited  him  into  his  house  as  he  was  passing  by, 
and  invited  him  into  a  room  where  he  had  money  counted  on  a 
table,  and  told  him  that  was  the  purchase  money  for  the  house 
and  lots,  and  desired  him  to  make  a  deed  according  to  the  con- 
tract:  that  the  defendant,  believing  it 'to  be  a  trick,  left  the  house. 
He  further  says,  that  the  sale  to  Pintard  and  McClain  was  a 
bona  fide  sale,  and  that  he  did  not  communicate  to  them  any  in- 
formation touching  the  said  articles  of  agreement. 

The  other  defendants,  Pintard  and -McClain,  allege  that  they 
purchased  without  any  notice  of  the  claim  of  the  complainant, 
and,  as  bona  fide  purchasers,  are  entitled  to  the  protection  of  the 
court. 

The  injunction  originally  granted,  was  dissolved  on  the  com- 
ing in  of  the  answer. 

A  replication  was  filed,  and  witnesses  examined.  The  material 
facts  proved  appear  in  the  opinion  of  the  court. 

J.  F.  Randolph  and  8.  L.  Southard,  for  the  complainant. 
This  is  a  proper  case  for  a  specific  performance.  There  has  been 
a  part  performance  of  the  agreement,  and  if  so,  the  court  will 


APRIL  TERM,  1831.  277 

King  v.  Morford  et  al. 

enforce  it.  The  grounds  of  defence  set  up  in  the  answer,  are 
disproved  by  the  evidence.  The  making  a  title  to  the  complain- 
ant is  a  condition  precedent,  and  he  could  not  be  required  to  per- 
form his  contract  until  that  was  done.  He  has  done  all  that  was 
necessary  on  his  part,  by  tendering  the  money.  The  delay  is 
sufficiently  accounted  for  by  the  difficulty  attending  the  title. 
Pintard  had  taken  possession,  and  claimed  to  hold  the  wharf  under 
an  adverse  title,  derived  from  the  representatives  of  Eseck  White. 
Pintard  and  McClain  are  not  entitled  to  the  protection  they  claim, 
as  purchasers  for  valuable  consideration,  without  notice.  Inde- 
pendent of  the  presumption  arising  from  King's  possession  of  the 
house,  as  owner,  and  of  the  wharf,  until  ousted  by  Pintard ;  there 
is  sufficient  evidence,  that  both  Pintard  and  McClain  were  in- 
formed of  the  sale  to  King  before  they  purchased.  There  is  not 
sufficient  evidence  of  any  acts  amounting  to  a  waiver  on  the  part 
of  King.  The  evidence  as  to  his  agreeing  that  the  thirty-five  dol- 
lars should  be  taken  as  rent,  is  unsatisfactory;  and  his  consent  that 
Morford  might  sell  to  Appleby  was  conditional,  and  did  not 
amount  to  an  abandonment  of  the  contract,  or  authorize  a  sale  of 
the  property  to  any  other  persons. 

G.  Wood  and  G.  D.  Wall,  for  defendants.  Under  this 
agreement  the  tender  of  a  deed  is  not  a  condition  precedent ;  the 
covenants  are  mutual  and  independent.  To  entitle  him  to  a 
conveyance,  King  should  have  tendered  the  money :  but  there 
was  no  legal  tender;  it  is  denied  by  the  answer,  and  not  suffi- 
ciently proved.  The  original  contract  of  sale  to  King  must  be 
taken  in  connexion  with  the  parol  understanding  that  followed, 
when  the  thirty-five  dollars  was  paid :  taken  together,  they 
amount  to  a  conditional  agreement,  that  King  should  pay  the 
purchase  money  and  take  a  title  within  a  year,  or  continue  in 
possession  as  tenant.  By  agreeing  that  the  thirty-five  dollars 
should  be  taken  and  endorsed  as  one  year's  rent,  he  waived  the 
contract;  and  afterwards  expressly  abandoned  it,  by  agreeing 
that  Morford  might  sell  the  property  to  Appleby.  This  authori- 
zed a  sale  to  any  one  else;  and  it  is  immaterial  whether  Pintard 
and  McClain  had  notice  of  the  sale  to  King  or  not.  The  delay 
of  the  complainant,  in  not  performing  his  part  of  the  agreement, 


278  CASES  IN  CHANCERY. 

King  v.  Morford  et  al. 

or  calling  for  a  title  until  1829,  after  Morford  had  sold  and  con- 
veyed to  Piutard  and  McClain,  is  sufficient  to  defeat  his  title  to 
relief. 

Cases  cited  :— 1  Saund.  R.  320^ n.  4;  9  Ves.  R.  608;  10  Ves. 
315  ;  1  Mad.  322-3,  363  ;  Phil.  479  ;  1  John.  C.  R.  273,  370, 
475;  1  John.  C.  131,  273;  2  John.  C.  R.  405  ;  Sugd.  246,  249, 
282 ;  16  Ves.  244,  249 ;  17  Ves.  433 ;  1  Mer.  282  ;  5  John.  C.  224 ; 
New.  Con.  230-1 ;  9  John.  R.  450  ;  6  Wheat.  528  ;  4  Ves.  686 ;  12 
Fes.  326;  13  Fes.  225;  14  Jb/m.  15 ;  9  Cranch,  456 ;  1  Peters' 

C.  C.  J2.  380 ;  6  John.  C.  R.  222. 

{ 

THE  CHANCELLOR.  The  defence  set  up  by  Pintard  and 
McClain,  that  they  are  bona  fide  purchasers,  without  notice,  is 
not  sustained  by  the  evidence.  Independently  of  the  inference 
to  be  drawn  from  the  fact  that  the  complainant  was  in  possession 
of  a  part  of  the  property,  there  is  sufficient  evidence  to  show  that 
both  Pintard  and  McClain  had  that  kind  of  information  on  the 
subject,  which  would  amount  to  notice  in  this  court.  Ebenezer 
Allen  testifies,  that  at  the  time  when  Pintard  cast  off  King's  boat 
from  the  landing,  which  was  shortly  after  the  contract  between 
King  and  Morford  was  entered  into,  Morford  told  Pintard  he  was 
sorry  he  had  cast  off  the  vessel ;  that  he  had  sold  the  lot  and  one 
quarter  of  the  dock  to  King.  Richard  Borden  also  states,  that 
he  was  present  at  a  conversation  between  King  and  Pintard, 
shortly  after  the  vessel  was  cast  from  the  wharf;  and  King  then 
told  Pintard  that  he  had  an  article  from  Morford  that  held  part  of 
the  wharf,  but  said  nothing  about  the  house  and  lot  being  in  the 
article.  Pintard  answered,  that  he  cared  nothing  for  King  or 
Morford  ;  that  he  had  a  lease  from  Eseck  White  to  hold  the  dock, 
and  had  nothing  to  do  with  them.  David  Taylor  states,  in  his 
evidence,  that  he  had  a  conversation  about  this  property  with 
McClain,  when  king  first  took  possession  of  the  house,  in  which 
conversation  he  told  McClain  that  King  had  purchased  the  pro- 
perty. 

It  follows,  then,  that  Pintard  and  McClain  do  not  stand  in  the 
situation  in  which  they  are  represented  by  the  answer.  They  are 
not  bona  fide  purchasers  without  notice,  and  as  such  entitled  to 


APRIL  TERM,  1831.  279 

King  v.  Morford  et  al. 

special  favor  in  this  court.  They  purchased  the  title  of  Morford, 
having  notice  of  at  least  some  claim  on  the  part  of  King,  and  thus 
purchasing,  they  stand  in  no  better  situation  than  Morford  himself. 
They  must  stand  or  fall  by  the  merits  of  the  case  as  it  exists  be- 
tween the  original  parties. 

The  original  article  of  agreement  is  admitted  by  both  parties. 
The  contract  appears  to  have  been  a  valid  one.  The  consideration 
was  bona  fide ;  and  there  is  nothing  like  fraud,  mistake,  or  sur- 
prise, that  can  be  alleged  against  it.  King,  the  complainant,  went 
into  possession  under  it,  and  is  still  in  possession  of  the  house  and 
lot.  The  evidence  shows,  that  if  he  ever  had  possession  of  any 
part  of  the  wharf,  he  was  very  soon  ousted  by  Pintard,  who  claimed 
it  under  a  lease  from  Eseck  White. 

What,  then,  are  the  objections  to  a  specific  performance  of  this 
contract?  On  the  part  of  Morford  they  are  various. 

The  first  is,  that  the  claim  is  a  stale  one ;  that  the  contract 
was  entered  into  in  1822,  and  no  step  taken  to  complete  it  on  the 
part  of  King  until  1829,  after  Morford  sold  to  Pintard  and 
McClain.  It  must  be  understood,  however,  that  King  was  in 
possession  of  at  least  part  of  the  premises;  that  he  had  been 
ousted  from  the  residue;  and  that  Morford,  the  vendor,  was 
prosecuting  an  action  against  those  who  had  disturbed  King  in 
the  enjoyment  of  his  rights.  Under  these  circumstances  it  would 
be  too  strict  to  say  that  King  had  forfeited  the  privilege  of  coming 
into  this  court  by  mere  lapse  of  time.  Delay,  amounting  to  even 
apparent  negligence,  may  be  explained ;  and  under  special  cir- 
cumstances, as  where  there  is  a  difficulty  about  the  title,  it  pre- 
sents no  bar  to  relief  in  this  court :  Sug.  on  Vendors,  280,  282. 
The  facts  in  relation  to  this  part  of  the  case,  are  very  different 
from  those  presented  by  the  bill  and  answer  at  the  time  the  motion 
was  made  to  dissolve  the  injunction.  And  although  I  think  it  very 
clear  that  the  complainant  has  not  strictly  pursued  his  rights,  yet 
if  the  case  stood  on  this  point  alone,  I  should  be  inclined  to  give 
him  relief. 

The  next  ground  of  defence  is,  that  it  was  agreed  at  the  time 
of  the  original  contract,  or  very  soon  after,  that  if  the  purchase 
money  was  not  paid  in  one  year,  the  thirty-five  dollars  paid  by 
King  should  be  considered  as  one  year's  rent  of  the  premises  ;  that 


280  CASES  IN  CHANCERY. 

King  v.  Morford  et  al. 

King  himself  agreed  that  the  money  thus  paid  should  go  as  rent; 
that  it  was  endorsed  on  the  article  as  so  much  rent  received  by 
Morford ;  and  that,  after  that  time,  King  occupied  as  a  tenant,  and 
not  as  a  purchaser. 

There  has  certainly  been  a  good  deal  of  looseness  about  this 
transaction,  and  it  is  difficult  to  reconcile  all  the  testimony.  If 
the  thirty-five  dollars  was  received  and  paid  as  rent,  it  operated 
as  an  abandonment  of  the  contract,  and  there  can  be  no  pretence 
for  a  specific  performance.  But  that  it  was  so  paid  and  received, 
is  at  least  a  matter  of  doubt.  The  testimony  of  Timothy  White, 
relative  to  the  repairs  to  the  house,  and  the  conversation  he  had 
with  King  about  the  payment  of  rent,  would  lead  to  the  belief 
that  King  was  there  at  that  time  as  a  tenant.  Other  circum- 
stances, and  the  testimony  of  other  witnesses,  would  lead  to  a  dif- 
ferent conclusion.  There  is  reason  to  believe  that  both  parties 
acted  in  this  matter  with  great  carelessness;  and  the  complainant, 
in  coming  here  for  extraordinary  relief,  has  not  presented  himself 
under  the  most  favorable  aspect  for'  the  consideration  of  the 
court. 

"Without,  however,  going  so  far  as  to  say  that  this  objection, 
standing  by  itself,  would  be  available  in  the  mouth  of  the  defend- 
ant, I  am  satisfied,  that  when  taken,  in  connection  with  the  next 
ground  of  the  defendants'  defence,  it  must  prevail. 

This  ground  is,  that  the  complainant  waived  and  abandoned 
the  contract  in  express  terms,  before  the  sale  of  the  property  to 
Pintard  and  McClain.  That  a  waiver  may  be  by  parol,  is  now 
well  settled,  notwithstanding  the  old  rule,  "  unum  quodque  dis- 
solvi  eo  ligamine  quo  ligatum  est"  Sudg.  109 ;  Stevens  v. 
Cooper,  1  Johns.  C.  R.  429.  The  inquiry  is,  therefore,  as  to 
the  fact. 

It  is  in  evidence,  by  the  testimony  of  James  Appleby,  jun.f 
that  in  the  fall  of  1828,  he  was  desirous  of  purchasing  this  pro- 
perty, and  called  on  Morford  to  know  if  he  would  sell  it.  Mor- 
ford said  he  would  sell,  but  must  'see  King,  as  he  was  under  ob- 
ligations to  him,  some  way  or  other,  to  give  him  the  refusal. 
Morford  told  witness  he  would  let  him  know  in  a  few  days,  and 
in  the  mean  while  would  see  King  concerning  it.  He  afterwards 
saw  King,  and  then  King,  Morford  and  witness  had  a  conversa- 


APRIL  TERM,  1831.  281 

King  v.  Morford  et  al. 

tion  about  it,  in  which  .King  said  he  was  willing  that  witness 
and  his  brother  should  have  the  property.  He  also  said  "  he  did 
not.  want  the  property,  and  that  he  would  as  lief,  or  a  little 
rather,  that  witness  should  have  it  as  any  other  persons"  Soon 
after,  Morford  sold  the  property  to  Pintard  and  McClain,  and  after 
all  this  the  alleged  tender  of  the  purchase  money  was  made  by 
King.  It  may  be  true,  as  urged  by  the  complainant's  counsel, 
that  the  complainant  was  willing  that  Morford  should  sell  to  Ap- 
pleby,  inasmuch  as  he  expected  to  receive  the  privilege  of  running 
his  boat  to  the  wharf.  This  may  have  been  his  motive ;  but  if 
the  language  of  the  witness  is  in  any  degree  correct,  the  inference 
to  be  drawn  from  it  is  a  much  more  extended  one.  After  telling 
Morford  he  did  not  want  the  property;  that  Appleby  might  take 
it;  that  he  would  quite  as  soon,  and  perhaps  rather,  he  should 
have  it  than  any  other  person  ; — I  do  not  see  how  he  can  call  for 
a  specific  performance,  although  the  sale  was  not  to  Appleby,  but 
to  some  other  person.  Suppose  the  negotiation  with  Appleby  had 
failed,  can  it  be  that  it  would  have  been  necessary  to  consult  Mr. 
King  again,  as  to  any  other  disposition  of  the  property  ?  I  think 
not.  The  privilege  appears  to  me  to  be  complete;  and  having 
been  acted  on,  and  a  sale  having  taken  place  in  consequence  of 
it,  I  feel  constrained  to  consider  the  contract  as  expressly  aban- 
doned by  the  complainant :  at  least,  he  has  placed  himself  in  a 
situation,  which  does  not  call  for  the  interference  of  this  court,  to 
aid  him  in  carrying  the  contract  into  execution. 

Whether  or  not  a  contract  shall  be  ordered  to  be  specifically 
performed  by  this  court,  is  always  a  matter  resting  in  sound  dis- 
cretion. "The  jurisdiction,"  says  Ld.  Eldon,  in  12  Ves.  331, 
"  is  not  compulsory  upon  the  court,  but  the  subject  of  discretion. 
The  question  is  not,  what  the  court  must  do,  but  what  it  may 
do  under  the  circumstances."  If  the  claim  for  a  deed  is  not  just 
and  reasonable ;  if  a  party  has  been  grossly  negligent  of  his 
rights,  or  has  abandoned  his  contract,  equity  will  not  afford  him 
extraordinary 'relief.  The  strict  rule  is  this,  that  the  party  who 
comes  into  equity  for  a  specific  performance,  must  come  with 
perfect  propriety  of  conduct,  otherwise  he  will  be  left  to  his  reme- 
dy at  law.  This  rule  may  be  considered  too  strict.  But  I  do 
think,  with  Ld.  Redesdale,  2  Sch.  and  Lef.  554,  that  conside- 


282  CASES  IX  CHANCERY. 

Tucker  et  al.  v.  Freeholders  of  Burlington. 

rable  caution  should  be  used  in  decreeing  the  specific  performance 
of  agreements,  and  that  the  court  is  bound  to  see  that  it  really  docs 
the  complete  justice  which  it  aims  at,  and  which  is  the  ground  of 
its  jurisdiction. 

After  a  very  careful  examination  of  this  case,  I  cannot  satisfy 
myself  that  the  complainant  stands  in  such  a  situation  as  to  war- 
rant a  decree  in  his  favor  at  the  hands  of  the  court. 

As  to  retaining  the  bill  for  compensation,  as  was  suggested  by 
one  of  the  complainant's  counsel,  it  is  only  necessary  to  remark, 
that  there  is  nothing  iu  this  case  which  would  render  such  a  course 
proper.  It  has  not  been  shown  that  King  has  made  any  perma- 
nent improvements  on  the  property.  What  has  been  done  has 
been  at  the  expense  of  Morford,  and  not  of  King.  If  King  has 
sustained  damage  by  being  kept  out  of  possession  of  the  wharf  or 
landing,  his  proper  remedy  is  at  law. 

The  bill  is  ordered  to  be  dismissed,  but  without  costs. 

CITED  tn  Miller  v.  Cheiwoocl,  1  Gr.  Ch.  208  ;  Von  Houten  v.  McCarty.  3  Gr.  Ch. 
148 ;  New  Barbadoes  Toll  Bridge  Co.  v.  Vreel'and,  3  Gr.  Ch.  161 ;  Huffman  v. 
Hummer,  3  C.  E.  Gr.  90 ;  Tompkins  v.  Tompkins,  6  C.  E.  Gr.  339 ;  Plummer  v. 
Keppler,llC.E.  Gr.432. 


EBENEZER  TUCKER  AND  OTHERS  v.  THE  BOARD  OF  CHOSEN 
FREEHOLDERS  OF  THE  COUNTY  OF  BURLINGTON. 


The  net  of  13th  November,  1823,  which  provides  "that  it  shall  and  may  be  law- 
ful for  the  Board  of  Chosen  Freeholders  in  and  for  the  county  of  Burlington, 
at  their  discretion,  to  build  and  maintain  a  good  and  sufficient  bridge  over  Bass 
river,  about  one-quarter  of  a  mile  above  the  dwelling-house  of  Benjamin 
Mather,  and  one  hundred  yards  below  William  Butler's,  where  the  new  road 
crosses  the  same  leading  from  Tuckerton  to  Bridgeport,  with  a  suitable  draw 
therein  of  sufficient  width  for  the  convenient  passage  of  vessels  navigating 
the  same," — vested  in  the  corporation  the  right  to  build  the  bridge  at  the 
place  specified,  whenever,  in  the  judgment  and  sound  discretion  of  the  Free- 
holders, the  right  might  be  advantageously  exercised. 

The  authority  was  not  temporary,  but  a  continuing  power ;  it  did  not  cense  although 
it  was  not  exercised  by  the  then  existing  Board  of  Freeholders,  or  although  the 
Board  in  1826,  might  have  decided  that  it  was  inexpedient  to  build  the  bridge. 

This  act  clothed  the  Board  of  Freeholders  with  the  same  power  to  erect  a  bridge 
over  the  river  at  the  place  designated,  that  they  have,  of  common  right,  to 
build  bridges  over  other  streams  in  the  county  not  navigable. 

Semble.  That  the  Board  of  Freeholders  have  no  authority  to  erect  a  bridge 
over  a  navigable  stream,  without  an  act  of  the  Legislature  expressly  for  that 


APRIL  TERM,  1831.  233 

Tucker  et  al.  v.  Freeholders  of  Burlington. 

purpose.  The  authority  vested  by  such  an  act,  is  independent  of  the  general 
law  respecting  bridges  ;  and  it  is  not  necessary  that  the  overseer  of  the  high- 
ways should  give  notice  to  the  director  of  the  board  of  freeholders,  of  the 
'necessity  of  a  bridge  at  the  place  specified. 

The  Board  of  Freeholders  having  jurisdiction  over  the  subject  matter,  this  court 
cannot  interfere  upon  the  ground  that  their  conduct  has  been  arbitrary,  or 
that  the  complainants  have  been  denied  a  fair  hearing.  The  right  of  super- 
vision and  correction  is  in  the  supreme  court :  it  appertains  to  their  general 
supervising  jurisdiction. 

The  principle  is  universal,  that  where  the  rights  of  an  individual  are  invaded,  by 
the  acts  of  persons  clothed  with  authority,  arid  who  exercise  that  authority 
illegally,  the  persons  aggrieved  must  seek  redress  by  Certiorari. 


The  complainants  state,  in  their  bill,  that  they  are  seized  in 
fee  simple  of  lands  and  premises,  and  in  particular  that  Ebenezer 
Tucker  is  seized  of  a  tavern  house,  store  house,  saw  mill  and 
wharf,  and  a  large  body  of  pine  land  and  cedar  swamp,  at  the 
head  of  navigation  on  Bass  river,  in  the  county  of  Burlington, 
where  the  road  from  Philadelphia  to  Tuckerton  crosses  said  river, 
above  where  the  new  road  from  Tuckerton  to  Bridgeport  crosses 
the  same  and  the  bridge  in  question  is  proposed  to  be  erected: 
that  large  quantities  of  boards  and  lumber  are  annually  sent  down 
said  river,  and  hay  and  merchandize  unloaded  at  said  wharf. 
They  set  forth  the  act  of  the  13th-  November,  1823,  authorizing 
the  board  of  chosen  freeholders  of  the  county  of  Burlington  to 
build  a  bridge  over  Bass  river,  at  the  pla<je  where  the  new  road 
from  Tuckerton  to  Bridgeport  crosses  the  same,  (as  stated  in  the 
opinion  of  the  court,)  with  various  provisions  for  the  regulation 
and  government  of  the  bridge.  They  farther  state,  that  at  a 
meeting  of  the  board  on  the  9th  February,  1824,  a  committee 
•was  appointed  to  view  the  site :  that  on  the  12th  May,  1826, 
they  reported  to  the  board  that  they  had  viewed  the  site,  and 
heard  the  parties,  and  believed  it  inexpedient  to  build  the  bridge 
at  that  time.  That  in  May,  1828,  a  majority  of  the  freeholders 
and  residents  in  the  neighborhood  remonstrated  to  the  board 
against  the  building  of  the  bridge.  That  the  subject  was  postponed 
until  the  13th  May,  1829,  when  another  committee  was  appointed 
to  view  the  site.  That  on  the  8th  February,  1830,  this  com- 
mittee reported  that  they  had  viewed  the  situation,  heard  the 
parties,  and  united  in  believing  that  it  would  be  expedient  for  the 
board  to  make  an  appropriation  for  building  the  bridge ;  the  con- 


284  CASES  IN  CHANCERY. 

Tucker  et  al.  v.  Freeholders  of  Burlington. 

sideration  of  which  report  was  postponed  until  May,  1830,  when 
a  committee  of  the  board  was  appointed  to  build  the  bridge. 

The  complainants  then  state,  that  the  act  only  authorized  the 
board  to  build  the  bridge  in  their  discretion  ;  and  insist,  that  the 
first  committee  having  reported  unfavorably,  and  the  board  hav- 
ing then  decided  not  to  build  the  bridge,  the  discretion  of  the 
board  was  expended,  and  no  longer  existed :  the  legislature  only 
intending  that  they  should  pass  on  the  subject  once.  They  com- 
plain, that  the  proceedings  of  the  board  have  been  irregular;  that 
upon  the  last  hearing  before  the  board  the  remonstrances  had 
been  overruled  and  not  read.  They  state,  that  the  new  road,  on 
which  the  bridge  is  to  be  placed,  has  been  only  opened  in  part ; 
that  it  is  but  little  travelled,  and  the  bridge  would  be  of  little  use 
to  the  public.  That  notice  of  the  necessity  of  building  said  bridge 
had  not  been  given  by  the  overseer  of  the  roads  to  the  director  of 
the  board,  pursuant  to  the  general  law  on  the  subject.  (Rev.  L. 
385.)  They  farther  state,  that  the  river  at  that  place  is  three 
hundred  feet  wide,  and  navigable  for 'vessels  of  burthen;  and 
that  the  erection  of  the  bridge  would  materially  injure  the  navi- 
gation, and  depress  the  value  of  the  complainants'  property  lying 
on  the  river  above  that  point,  without  benefi tting  the  public.  And 
they  pray  that  the  board  may  be  compelled  to  receive  the  remon- 
strances, and  for  a  subpoena,  and  injunction  against  building  the 
bridge. 

On  filing  the  bill,  and  serving  a  copy  of  the  bill  and  notice  of 
an  application  for  injunction,  an  injunction  was  awarded. 

The  defendants  afterwards  put  in  their  answer,  in  which  they 
admit  the  law  and  the  proceedings  of  the  board  of  freeholders  ; 
but  insist  that  the  freeholders  violated  no  principle  of  law  or  equi- 
ty in  rejecting  the  remonstrances,  as  they  were  not  verified,  and 
went  to  falsify  the  report  of  a  committee  of  the  board,  who  long 
afterward  had  viewed  the  site,  heard  the  parties,  and  believed 
the  period  had  arrived  when  it  was  expedient  to  build  the  bridge. 
The  defendants  further  allege,  that  the  board  never  fully  acted 
under  the  law  until  the  period  when  they  ordered  the  bridge  to 
be  built :  that  the  first  report  was  inconclusive,  and  of  no  force 
unless  acted  on  by  the  board  :  that  the  board  never  decided  not  to 
build  the  bridge;  but  that  after  the  first  report  of  the  committee, 


APEIL  TERM,  1831,  285 

Tucker  et  al.  v.  Freeholders  of  Burlington. 

no  further  proceedings  were  had  in  relation  to  the  building  of  the 
bridge,  until  the  second  application  to  the  board.  And  they  sub- 
rait,  whether  by  these  proceedings  the  discretion  vested  by  the  act 
in  the  board,  was  expen(Jed.  The  defendants  farther  state,  that 
one  third  of  the  road  intended  to  be  connected  with  said  bridge 
is  opened,  and  in  daily  use,  and  that  they  believe  the  whole  will 
be  opened  as  soon  as  the  bridge  is  built ;  and  they  insist  that  no- 
tice of  the  necessity  of  said  bridge  was  not  required  to  be  given 
by  the  overseer  of  the  highways  to  the  director  of  the  board,  to 
enable  the  board  to  act  under  the  law  enabling  them  to  build  the 
bridge :  that  the  act  vested  a  special  authority  in  the  board,  in- 
dependent of  the  general  law  respecting  bridges.  They  also  insist 
that  the  bridge  is  a  public  improvement,  and  that  this  court  has 
no  jurisdiction  over  the  proceedings  of  the  board,  in  the  exercise 
of  the  discretionary  power  vested  in  them  by  the  act.  They  deny 
that  the  erection  of  the  bridge  will  materially  obstruct  the  navi- 
gation of  the  river,  or  injure  the  value  of  property  lying  above 
the  bridge,  but  on  the  conlrary  say  that  it  will  enhance  its  value. 

The  answer  was  put  in  under  the  corporate  seal  of  the  board, 
with  the  usual  affidavit  by  the  director  of  the  board  annexed. 

After  the  coming  in  of  the  answer,  upon  notice  given  a  motion 
was  made  to  dissolve  the  injunction :  and  argued  by 

G.  J).  Wall,  for  the  complainants  ;  * 

B.  JR.  Brown  and  G.  Wood,  for  the  defendants. 
Cases  cited :  1  John.  C.R.IS;  2  John.  C.  R.  371. 

THE  CHANCELLOR.  The  grounds  on  which  it  was  deemed 
advisable  to  allow  an  injunction  in  this  case,  were  these  : — 1.  Be- 
cause it  was  represented  that  Bass  river,  over  which  the  board  of 
freeholders  were  about  to  erect  a  bridge,  was  a  navigable  stream, 
and  used  by  divers  individuals  for  the  purpose  of  navigation  ;  and 
that  great  and  irreparable  injury  would  be  done  to  private  property 
by  the  erection  of  the  bridge  ;  and, 

2.  Because  it  was  represented,  and  so  appeared  to  the  court, 
that  the  act  of  the  legislature  of  1823,  under  which  the  board 


286  CASES  IN  CHANCERY. 

Tucker  et  al.  v.  Freeholders  of  Burlington. 

claimed  authority  to  erect  the  bridge,  was  no  longer  operative; 
that  it  was  intended  to  be,  and  actually  was,  temporary  in  its  na- 
ture, and  did  not  invest  the  board  with  an  authority  which  might 
be  exercised  at  their  discretion,  at  any  period  of  time,  no  matter 
how  remote. 

As  to  the  first  ground,  it  is  sufficiently  met  by  the  answer  of  the 
defendants  ;  from  which  it  appears,  that  even  if  the  stream  at  the 
place  where  it  is  sought  to  locate  the  bridge,  is  to  be  considered  as 
a  navigable  stream,  yet  the  injury  that  may  result  to  private  prop- 
erty is  not  of  a  character  to  require  the  interference  of  this 
court. 

In  looking  into  the  second  ground,  in  connection  with  the  facts 
disclosed  in  the  defendants'  answer,  I  am  perfectly  satisfied  the 
injunction  cannot  be  sustained. 

By  an  act  of  the  legislature,  passed  the  13th  November,  1823, 
it  was  enacted,  substantially,  as  follows  : — That  it  shall  and  may 
be  lawful  for  the  board  of  chosen  freeholders  in  and  for  the  coun- 
ty of  Burlington,  at  their  discretion,  to  build  and  maintain  a 
good  and  sufficient  bridge  over  Bass  river,  about  one  quarter  of  a 
mile  above  the  dwelling  house  of  Benjamin  Mather,  and  about 
one  hundred  yards  below  William  Butler's  house,  where  the  new 
laid  road  crosses  the  same,  leading  from  Tuckerton  to  Bridgeport, 
with  a  suitable  draw  therein,  of  sufficient  width  for  the  convenient 
passage  of  vessels  navigating  the  same. 

This  law  ves'ted  in  the  corporation  the  right  to  build  the  bridge. 
The  place  where  was  particularly  specified ;  but  the  time  when 
the  right  might  advantageously  be  exercised,  was  left  to  the  judg- 
ment and  sound  discretion  of  the  freeholders,  the  immediate  rep- 
resentatives of  the  county.  The  authority  was  not  temporary, 
such  as  to  require  its  exercise  by  the  then  existing  board  of  free- 
holders, and  if  not  exercised  by  them  to  cease.  Nor  is  it  to  be 
considered  as  ceasing,  although  the  board  might  have  decided  in 
1826,  that  it  was  inexpedient  to  build  a  bridge  at  the  place  speci- 
fied. The  power  was  a  continuing  power.  By  this  special  act, 
the  board  of  freeholders  were  clothed  with  the  same  kind  of  pow- 
er, to  place  a  bridge  over  this  river,  at  the  place  designated  in  the 
law,  that  they  have  constitutionally  and  of  common  right  to  erect 
bridges  over  other  streams  in  the  county,  not  navigable.  The 


APRIL  TERM,  1831.  287 

Tucker«et  al.  v.  Freeholders  of  Burlington. 

power  may  he  exercised,  or  it  may  be  postponed  in  its  application, 
or  withheld  altogether.  The  legislature  did  not  intend,  in  any 
wise,  to  prescribe  limits  to  the  discretion  of  the  board  of  freehold- 
ers. They  meant  simply  to  grant  to  them  a  power,  which  before 
they  did  not  possess,  and  to  leave  them  to  exercise  it  when,  and  in 
such  mode,  as  should  be  deemed  most  advantageous  for  the  interests 
of  the  public. 

It  appears  moreover,  by  the  answer  of  the  defendants,  that  the 
board  never  made  a  final  decision  on  the  application  to -build  the 
bridge,  until  May,  1830,  when  they  decided  favorably :  that 
although  a  committee  of  the  board  had  formerly  reported  unfavor- 
ably to  the  building  of  the  bridge,  that  report  had  not  been  finally 
acted  on  by  the  board.  This  being  the  case,  there  is  no  one  prin- 
ciple on  which  it  can  be  seriously  contended,  that  the  power  of  the 
board  was  at  an  end. 

It  is  urged,  however,  that  the  board  have  not  exercised  their 
powers  in  a  lawful  way  :  that  their  conduct  has  been  arbitrary 
towards  the  complainants,  and  that  the  complainants  have  been 
denied  a  fair  hearing  on  the  merits  of  the  case. 

If  the  board  have  power  to  act  in  the  premises;  if  they  have 
jurisdiction  over  the  subject  matter,  this  court  can  take  no  cogni- 
zance of  the  complaints  contained  in  the  bill.  The  right  of  super- 
vision and  correction  is  in  another  tribunal^  In  England,  it  be- 
longs to  the  king's  bench,  and  in  this  state  to  the  supreme  court. 
The  principle  is  universal,  that  wherever  the  rights  of  individuals 
are  invaded  by  the  act  of  persons  clothed  with  authority  to  act,  and 
who  exercise  that  authority  illegally,  the  persons  aggrieved  must 
seek  redress  by  Certiorari.  It  appertains  to  the  general  super- 
visory jurisdiction  of  the  supreme  court,  exercising  in  that  behalf 
the  powers  of  the  king's  bench,  to  correct  abuses  of  that  character. 
The  jurisdiction  is  not  a  doubtful  one,  nor  is  the  exercise  of  power 
under  it  novel,  either  in  England  or  in  our  own  state.  It  is,  then, 
to  the  supreme  court  that  the  complainants  must  resort  to  have 
their  grievances  redressed,  and  not  to  the  chancery :  1  Sulk.  145 ; 
1  Ld,  Ray.  469 ;  4  John.  C.  R.  352. 

Let  the  injunction  be  dissolved. 

CITED  in  Allen  v.  Freeholders  of  Monmouth,  2  Beas.  71 ;  City  of  Camden  v.  Mid- 
ford,  2  Dutch.  54. 


288  CASES  IN  CHANCERY. 

State  Bank  at  Elizabeth  v.  Marsh  and  Edgar. 

THE  STATE  BANK  AT  ELIZABETH  v.  JOSEPH  MAESH  AND  WIL- 
LIAM EDGAR. 


"Where  the  property  of  a  debtor  has  been  sold  at  sheriff's  sale,  and  bought  in  by 
his  friends  for  a  nominal  consideration,  and  upon  a  bill  filed  in  this  court  the 
purchase  has  been  decreed  to  be  in  trust  for  the  benefit  of  creditors,  and  the 
property  is  ordered  to  be  re-sold;  the  creditors  having  specific  liens  on  the 
property  at  the  time  of  the  first  sale,  are  to  be  paid  first,  according  to  their 
respective  priorities. 

The  judgment  creditor  under  whose  execution  the  first  sale  was  made,  is  not  to  be 
excluded,  or  limited  to  the  sum  produced  by  that  sale.  If  the  proceeds  of 
the  second  sale  will  reach  that  judgment,  in  its  order,  the  balance  should  be 
paid ;  or  if  the  purchasers  at  the  first  sale  have  since  paid  off  the  judgment* 
they  are  entitled  to  be  reimbursed. 

It  makes  no  difference,  that  the  property  is  under  the  direction  of  this  court,  as 
equitable  assets  ;  for  in  regard  to  them,  where  the  law  gives  a  priority,  equity 
will  not  disturb  it. 

Executions  out  of  justices'  courts,  are  liens  upon  the  personal  property  only ;  and 
where  the  trust  funds,  arising  from  the  personal  property,  are  exhausted  by 
prior  executions,  they  must  be  placed  on  th'e  same  footing  with  the  general 
creditors. 

The  widow  of  the  debtor  had  united  with  the  trustees,  in  the  sale  and  conveyance 
of  his  real  estate,  and  the  master  was  directed  to  report  "what  sum  is  justly 
due,  and  ought  to  be  allowed,  for  her  right  thus  conveyed."  He  reported,  that 
she  ought  to  be  paid  a  gross  sum  of  seven  hundred  and  ninety-six  dollars  and 
eighty  cents,  (calculating  that  sum  to  be  the  present  value  of  an  annuity,  equal 
to  the  interest  of  one  third  of  the  purchase  money,  for  her  life.)  The  allowance 
on  this  principle,  though  novel,  appearing  to  be  reasonable,  and  within  the 
direction  of  the  order  of  reference  in  this  particular  case,  was  confirmed. 

Where  trustees  have  managed  a  farm  with  prudence,  and  for  the  benefit  of  the 
property,  and  account  for  the  whole  net  proceeds ;  although  it  might,  perhaps, 
have  been  rented  for  something  more,  yet  they  ought  not  to  be  charged  for  the 
deficiency  unless  it  can  be  considered  as  growing  out  of  their  "default  01 
neglect." 

The  general  principle  is  well  settled,  that  trustees  are  not  entitled  to  compeftsa- 
lion  for  services  rendered  in  the  performance  of  their  trust ;  under  the  order 
for  "just  allowances,"  they  are  entitled  only  to  charges  and  expenses. 

But  when  by  the  interlocutory  decree,  the  master  was  directed  to  allow  to  the  trus- 
tees "a  just 'compensation  for  their  trouble,  charges  and  expenses,  in  taking 
care  of  the  property,  making  sales  thereof,  or  otherwise  in  and  about  the 
same" — they  may  not  only  be  allowed  for  charges  and  expenses,  but  also  be 
compensated  for  their  trouble  in  taking  care  of  the  property,  making  sales 
thereof,  and  executing  the  trust ;  by  a  commission,  which  is  preferable  to  the 
allowance  of  a  gross  sum. 


APRIL  TERM,  1831.  289 

State  Bank  at  Elizabeth  v.  Marsh  and  Edgar. 

The  master  having  divided  the  direction,  and  allowed  the  trustees  twenty  dol- 
lars per  annum  for  their  trouble  in  the  care  and  management  of  the  farm  j 
and  for  making  sale  of  the  trust  property,  collecting  and  disbursing  the 
moneys,  a  commission  of  six  per  cent.  The  allowance  for  taking  care  of 
the  property,  being  reasonable,  was  confirmed  :  the  commission  on  the  sale 
of  the  property,  principally  real  estate,  was  reduced  from  six  to  four  per 
cent,  on  the  amount. 

The  direction  to  the  master,  "to  take  an  account  of  the  payments  made  by  the 
trustees  for  and  on  account  of  the  debts  due  and  owing  from  the  debtor,  and 
the  dates  and  amounts  of  such  payments  respectively,"  is  complied  with  by 
his  making  a  detailed  statement  of  the  payments  made.  But  the  trust  pro- 
perty having  been  sold,  and  it  being  necessary  to  a  final  decree,  it  was  refer- 
red back  to  the  master  "  to  take  and  state  an  account  of  the  whole  amount  of 
the  trust  moneys  that  have  come  to  the  hands  of  the  trustees,  or  with  which 
they  ought  to  be  charged,  according  to  the  interlocutory  decree  and  the  di- 
rections now  given,  ami  of  the  allowances  to  be  made  to  them  for  moneys 
retained  or  paid  by  them  according  to  the  trust." 


This  was  a  creditors'  suit.  There  was  an  interlocutory  de- 
cree, which  states,  "  that  it  appearing  to  the  Chancellor  that  the 
real  and  personal  estate  which  belonged  to  James  Smith,  and 
which  was  purchased  by  the  said  Joseph  Marsh  and  William. 
Edgar,  at  the  respective  sales  thereof  made  by  Alexander  Dunn, 
esquire,  as  sheriff"  of  the  county  of  Middlesex,  and  afterwards  by 
Abraham  Vanarsdalen,  esquire,  as  sheriff  of  said  county  ;  and 
•mentioned  in  the  pleadings  and  proofs  in  this  cause;  was  pur- 
chased by  them,  the  said  Marsh  and  Ed£ar,  in  the  first  place, 
in  trust  for  the  creditors  of  the  said  James  Smith,  and  ultimate- 
ly for  the  benefit  of  the  family  of  the  said  Smith  ;  and  that  the 
said  Marsh  and  Edgar  are  to  be  considered  as  trustees  according- 
ly. And  that  all  and  singular  the  real  and  personal  estate  pur- 
chased as  above  mentioned,  after  reimbursing  and  indemnifying 
the  said  Marsh  and  Edgar  thereout,  for  the  moneys  duly  and  law- 
fully paid  in  respect  thereto,  ought  to  be  liable  and  chargeable  to 
and  with  the  payment  of  the  debts  which  were,  at  the  time  of 
said  sales  respectively,  due  and  owing  from  the  said  James  Smith 
to  his  creditors,  accordingly  :  subject,  nevertheless,  to  the  liens 
and  incumbrances  then  lawfully  existing  and  being  on  said  pro- 
perty. And  thereupon  it  was  ordered,  adjudged  and  decreed,  that 
the  said  real  and  personal  estate  be  deemed  and  held  liable  and 
chargeable  accordingly.  And  it  was  referred  to  N.  Saxton, 
one  of  the  masters  of  this  court,  (among  other  things,)  to  as-- 

T 


290  CASES  IN  CHANCERY. 

State  Bank  at  Elizabeth  v.  Marsh  and  Edgar. 

certain  and  compute  the  amount  of  the  money  paid  by  the  said 
Marsh  and  Edgar,  either  before  or  after  said  sales,  for  and  on 
account  of  said  purchases  by  them  :  and  of  the  amount  of  money 
by  them  laid  out  and  expended,  in  the  management  and  taking 
care  of  said  property,  and  in  repairs  or  other  beneficial  improve- 
ments on  the  said  real  estate.  And  to  take  an  account  of  the 
liens  and  incumbrances  which  were  on  the  said  real  and  personal 
estate  at  the  times  of  the  said  sheriffs'  sales,  respectively :  to  as- 
certain the  nature  thereof,  the  amount  due  thereon,  their  legal 
priority,  and  to  whom  payable.  Also,  to  ascertain  and  report 
what  part  of  the  said  real  and  personal  estate  so  purchased,  still 
remained  in  the  hands  of  the  said  Marsh  and  Edgar;  and  what 
part  they  had  sold,  or  otherwise  disposed  of  or  wasted  ;  and  to 
ascertain  the  amount  with  which  they  ought  to  be  charged,  for 
the  part  so  sold,  disposed  of  or  wasted  ;  distinguishing  where  the 
widow  of  the  said  James  Smith  had  united  in  any  such  sales ; 
and  that  he  report  what  sum  was  justly  due,  and  ought  to  be  al- 
lowed her,  for  her  right  thus  conveyed.  And  'to  take  an  account 
of  the  rents,  issues  and  profits  which  the  said  Marsh  and  Edgar 
had  received,  or  without  their  neglect  or  default  'might  have  re- 
ceived, from  the  said  real  estate.  And  also  to  take  an  account  of 
the  payments  made  by  the  said  Marsh  and  Edgar,  for  and  on 
account  of  the  said  debts  due  from  the  said  James  Smith,  and  of 
the  dates  and  amounts  of  the  said  payments  respectively.  And 
in  taking  the  said  accounts,  to  allow  to  the  said  Marsh  and  Edgar 
a  just  compensation  for  their  trouble,  charges  and  expenses  in  tak- 
ing care  of  said  property,  making  sale  thereof,  or  otherwise  in  and 
about  the  same,"  &c. 

In  obedience  to  this  order,  the  master  proceeded  to  make  the 
inquiries,  and  take  the  accounts  directed,  and  made  a  report  upon 
the  several  matters  contained  in  the  said  order  of  reference, 
A.mong  other  things,  the  master  reported,  that  the  widow  of  the 
said  James  Smith  had  united  with  the  trustees  in  the  sale  and 
conveyance  of  a  farm,  called  the  Point-neck  farm  ;  and  upon  the 
principle  that,  as  dowress,  she  was  entitled  to  the  interest  of  one 
third  of  the  purchase  money  during  life,  and  that,  being  a  healthy 
person  under  forty  years  of  age,  she  might  reasonably  be  expect- 
ed to  survive  her  husband  twenty  years;  the  master  allowed  her 


APRIL  TERM,  1831.  291 

State  Bank  at  Elizabeth  v.  Marsh  and  Edgar. 

a  gross  sum  of  seven  hundred  and  ninety-six  dollars  and  eighty 
cents  for  her  right  thus  conveyed  ;  calculating  that  sum  to  be 
the  present  value  of  an  annuity,  equal  to  the  interest  of  one  third 
of  the  purchase  money,  for  that  period  of  time. 

Upon  the  coming  in  of  this  report,  the  complainants  took  Dhe 
following  exceptions : — 

"  First.  For  that  the  said  master,  in  taking  the  said  accounts, 
has  allowed  as  liens  upon  the  said  estate  of  the  said  James  Smith, 
deceased,  judgments  which  were  not  liens  on  the  said  property; 
viz.  the  judgments  of  the  Trenton  banking  company,  of  Andrew 

Bell,  of  Aaron  Drake,  and  Birdsall  ;  and  has  reported 

other  judgments,  as  liens  on  the  whole  property,  which  were  liens 
only  on  a  part. 

"Second.  For  that  the  master  has  allowed  a  mortgage  of  Jede- 

o    o 

diah  Swan,  deceased,  as  a  lien  on  the  estate,  without  sufficient  evi- 
dence of  the  existence  of  the  said  mortgage,  &c. 

"  Third.  For  that  the  master  has  allowed  the  widow  of  the  said 
James  Smith,  deceased,  seven  hundred  and  ninety-six  dollars  and 
eighty  cents,  for  her  right  in  the  Point-neck  farm,  sold  to  Samuel 
Dunn ;  whereas  nothing  ought  to  have  been  allowed  her,  or  if  any 
thing,  the  allowance  is  much  too  great. 

"  Fourth.  For  that  the  master  has  not  charged  the  defendants 
with  the  rents  and  profits  received,  or  which  might  have  been 
received  out  of  the  lands  in  which  the  said  James  Smith  had  a  life 
estate. 

"  Fifth.  For  that  the  master  has  not  charged  the  defendants 
with  all  the  rents  and  profits  received,  or  which  with  proper  dili- 
gence might  have  been  received,  from  the  other  real  estate  late  of 
the  said  James  Smith  deceased,  in  their  hands. 

"Sixth.  For  that  the  master  has  allowed  and  deducted,  for  the 
widow  of  the  said  Smith,  one  third  of  the  rents  and  profits,  without 
charging  her  share  with  the  one  third  of  the  taxes  and  expenses  of 
carrying  on  the  said  farm. 

"  Seventfi.  For  that  the  said  master  has  allowed  the  said  defend- 
ants, as  trustees,  large  commissions  on  the  sales  made  by  them  : 
whereas,  the  trust  springing  out  of  wrongful  acts,  no  commissions 
ought  to  have  been  allowed,  or  if  any,  the  commissions  allowed  are 
much  too  large. 


292  CASES  IN  CHANCERY. 

State  Bank  at  Elizabeth  v.  Marsh  and  Edgar. 

"Eighth.  For  that  the  said  master  has  allowed  the  defendants, 
for  payments  on  recognizance  to  Abigail  Blanchard,  which  have 
not  been  paid,  or  if  paid  ought  not  to  have  been  allowed. 

"  Ninth.  For  that  the  said  master,  in  his  report,  has  made  state- 
ments of  the  items  of  the  defendants'  account,  without  deciding, 
and  reporting  his  decision  upon  them,  and  whether  the  same  are 
or  are  not  allowed." 

The  exceptions  were  argued  by 

G.  Wood  and  1.  H.  Williamson,  for  the  complainants; 
G.  D.  Wall  and  S.  L.  Southard,  for  the  defendants. 

THE  CHANCELLOR.  The  first  exception  is,  that  the  master  has 
designated  and  allowed  as  liens  on  the  property  at  the  time  of  the 
sale,  judgments  which  were  no  liens. 

Four  judgments  are  specified  : — 

1.  The  judgment  in  favor  of  the  Trenton  banking  company. 

2.  The  judgment  in  favor  of  Andrew  Bell. 

3.  Drake's  judgment  in  a  justice's  court;  and 

4.  Birdsall's  judgment,  also  in  same  court. 

First,  then,  as  to  the  judgment  of  the  Trenton  banking  com- 
pany. This  was  not  a  lien  on  the  property  at  the  time  of  the  first 
sale  by  sheriff  Dunn.  That  sale  was  on  the  18th  January,  1819, 
and  the  judgment  was  not  rendered  until  the  23d  February, 
1819.  But  it  was  a  lien  on  that  part  of  the  property  which  was 
subsequently  sold  by  sheriff  Vanarsdalen,  in  September,  1820. 
The  complainants  have  charged  in  their  bill,  and  such  appears 
to  be  the  fact,  that  the  sale  by  sheriff  Vanarsdalen  was  in  virtue 
of  an  execution  issued  on  that  very  judgment.  I  do  not,  there- 
fore, see  with  what  propriety  it  can  be  contended  that  it  was  no 
lien.  It  was  argued,  however,  by  one  of  the  counsel  for  the 
complainants,  that  the  property  sold  under  that  judgment  and 
execution  brought  only  three  hundred  dollars,  and  that  the  exe- 
cution can  receive  no  more ;  that  for  any  thing  further  the  Tren- 
ton banking  company  must  come  in  as  general  creditors.  I  can- 
not concur  in  this  opinion.  I  do  not  find  that  the  Trenton  bank- 
ing company  ever  agreed  that  this  property  should  be  sold  for  a 


APRIL  TERM,  1831.  293 

State  Bank  at  Elizabeth  v.  Marsh  and  Edgar. 

nominal  consideration,  and  purchased  in  by  the  defendants,  for 
the  general  benefit  of  the  creditors.  The  property  was  sold  under 
their  execution,  without  any  such  understanding.  It  turns  out 
afterwards  that  this  court,  for  good  cause  shown,  is  constrained 
to  decree  that  the  purchasers  hold  the  property  not  absolutely,  but 
as  trustees  for  the  benefit  of  the  creditors  of  Smith.  The  property 
is  ordered  to  be  sold.  It  appears  evident  to  me,  that  creditors 
having  specific  liens  on  the  property  are  to  be  paid  first,  according 
to  their  respective  priorities.  If,  then,  the  proceeds  of  the  sales  will 
reach  this  judgment  in  its  order,  why  should  not  the  balance  be 
paid  ?  What  has  the  Trenton  banking  company  done  to  forfeit  its 
claim?  Or,  if  Marsh  and  Edgar  have  satisfied  this  execution, 
why  should  they  not  be  reimbursed,  if  there  are  sufficient  funds? 
It  makes  no  difference  that  this  property  is  now  under  the  direc- 
tion of  this  court  as  equitable  assets ;  for  even  in  regard  to  these, 
where  the  law  gives  a  priority,  equity  will  not  destroy  it :  10  Johns. 
522. 

As  to  the  judgment  of  Andrew  Bell,  that  appears  also  to  have 
been  a  lien  on  the  property  prior  to  the  sale  by  Vanarsdalen  ;  and 
it  is  stated  in  schedule  4,  of  the  master's  report,  that  there  was  an 
execution  in  the  hands  of  the  same  sheriff.  If  so,  the  same  prin- 
ciple will  apply  to  this  judgment  also  ;  and  I  am  not  satisfied  that 
the  judgment  would  not  be  a  lien  even  without  an  execution. 

The  executions  out  of  the  justices'  courts  were  also  liens  on 
the  trust  property  at  the  time  of  the  sale,  or  at  least  on  a  part  of 
it,  and  the  master  has  done  right  in  so  reporting  them.  It  is  con- 
tended, however,  that  they  ought  not  to  be  paid  out  of  the  trust 
property,  because  they  were  only  liens  on  the  personalty,  which 
was  exhausted  by  prior  incumbrances.  The  amount  of  the  per- 
sonalty is  not  to  be  taken  from  the  sale  list  of  the  sheriff.  This 
property  was  afterwards  disposed  of  again  by  Marsh  and  Edgar, 
at  an  advance  of  nearly  one  thousand  dollars,  with  which  they 
are  rightfully  charged  by  the  master.  But  even  with  this  addi- 
tion, the  personal  property  would  all  be  exhausted  in  the  payment 
of  prior  liens.  The  executions  of  the  State  Bank  at  Elizabeth 
and  the  Newark  Banking  and  Insurance  Company,  were  both 
prior  to  the  executions  out  of  the  justices'  courts,  and  they  swal- 
lowed up  the  whole  of  the  personal  property.  These  executions 


294  CASES  IN  CHANCERY. 

State  Bank  at  Elizabeth  v.  Marsh  and  Edgar. 

can  be  no  lien  on  that  part  of  the  trust  fund  which  is  created  by 
the  real  estate ;  they  never  were  a  lien  on  the  real  estate,  and 
must  be  placed  in  relation  to  it  on  the  same  footing  with  other 
clajms.  I  think  the  master's  report  is  right,  under  the  order:  he 
was  to  state  the  liens  on  the  property  at  the  time  of  the  sale,  in 
their  order  of  priority,  and  he  has  done  so  ;  but  I  do  not  under- 
stand the  master  to  say,  that  because  they  were  existing  liens  on 
the  personalty  at  the  time  of  the  sheriff's  sale,  therefore  they  are 
to  be  paid  at  all  events.  He  was  not  directed  to  report  on  that 
point. 

2.  The  second    exception,  respecting  the  Swan   mortgage,  ap- 
peared to  have  been  erroneously  taken,  and  was  not  insisted  on. 

3.  The  third  exception  relates  to  the  allowance  of  seven  hundred 
and  ninety-six  dollars  to  the  widow  of  James  Smith,  for  her  right 
of  dower  in  the  Point-neck  farm. 

The  master  was  directed  to  inquire  and  report  whether  the 
widow  of  James  Smith  had  united  in  any  .sales  of  real  estate  made 
by  the  trustees,  and  "  what  sum  is  justly  due  and  ought  to  be 
allowed  forjier  right  thus  conveyed."  He  reported  that  the  trus- 
tees had  sold  certain  real  estate,  that  the  widow  had  united  in  the 
sale,  and  that  the  sum  of  seven  hundred  and  ninety-six  dollars  and 
eighty  cents  ought  to  be  allowed  for  her  right  thus  conveyed.  I 
am  not  dissatisfied  with  this  allowance.  It  appears  reasonable; 
and  under  the  direction,  I  think  the  master  was  right  in  computing 
the  allowance  in  the  manner  he  did.  The  principle  is  a  novel 
one,  I  admit,  in  our  courts  of  justice;  but  it  is  often  adopted  by 
executors  and  administrators  in  the  settlement  of  estates,  with  the 
assent  of  creditors,  and  with  great  benefit  to  all  persons  interested  ; 
and  I  think  it  would  be  beneficial  to  all  parties  in  this  case. 
Without  considering  this  as  a  precedent  for  the  future  guidance 
of  the  court,  and  believing  that  the  master 'has  acted  substantially 
in  conformity  with  his  directions,  I  am  inclined  to  overrule  this 
exception. 

4.  There  is  no  foundation  for  the  fourth  exception.     I  under- 
stand from  the  master's  report,  that  the  property  in  which  Smith 
had  a  life  estate,  was,  together  with  all  the  other  lands,  purchased 
by  Marsh  and  Edgar,  (except  the  Tharp  place,)  rented  by  them 
to  Smith  at  a  certain  rent,  which  is  accounted  for 


APEIL  TERM,  1831.  295 

State  Bank  at  Elizabeth  v.  Marsh  and  Edgar. 

5.  The  fifth  exception  is,  that  the  master  has  not  charged  the 
defendants  with  all  the  rents  and  profits  received  from  the  estate. 

This  exception  does  not  appear  to  be  sustained.  The  master 
has  taken  great  pains  to  attain  a  just  conclusion  on  this  part  of 
the  case  submitted  to  him.  He  ascertained,  by  the  oath  of  the 
defendants  and  the  examination  of  their  accounts,  which  he  states 
to  have  been  accurately  kept,  that  the  whole  of  the  net  proceeds 
of  the  real  estate,  from  the  1st  of  April,  1819,  to  the  1st  of  April, 
1827,  (eight  years,)  was  two  thousand  six  hundred  and  ninety-one 
dollars  and  ninety-eight  cents,  making  an  average  of  three  hun- 
dred and  thirty-six  dollars  and  forty-nine  cents  per  annum.  On 
comparing  this  with  the  testimony  of  witnesses  who  were  exam- 
ined before  him  on  the  subject,  he  carne  to  the  conclusion  that 
they  should  be  charged  the  annual  sum  of  three  hundred  and  fifty 
dollars,  as  the  fair  rent  of  the  premises.  I  see  nothing  in  the  evi- 
dence to  satisfy  me  that  this  is  incorrect.  And  if,  as  some  of  the 
witnesses  seem  to  think,  the  property  might,  if  rented  for  a  money 
rent,  have  produced  a  larger  amount,  yet  the  mode  pursued  by  the 
trustees  was  certainly  a  prudent  one,  and  such  as  they  judged  most 
for  the  benefit  of  the  property  ;  and  they  ought  not  to  be  charged, 
unless  the  deficiency  can  be  considered  as  growing  out  of  their 
default  or  neglect.  The  property  was  kept  in  good  repair  and  in- 
creased in  value. 

6.  The  allowance  of  one  third  of  the  net  proceeds  of  the  real 
estate  for  the   widow's  dower  is  correct.     In  making  the  allow- 
ance in  that  way,  her  share  of  the  land  bears  its  full  share  of  the 
expenses,  which  is  all  the  complainants  can  desire. 

7th  Exception  relates  to  the  commissions  allowed  by  the  mas- 
ter. On  this  subject  much  has  been  said  about  the  nature  of  the 
trust,  and  the  conduct  of  the  trustees.  I  do  not  know  that  it 
would  be*  profitable  for  me  to  go  into  a  particular  investigation  of 
the  matter.  The  property  in  their  hands  was  declared  to  be  trust 
property  by  the  court,  and  to  be  held  in  trust  for  different  pur- 
poses than  those  set  up  by  the  defendants  in  their  answer.  The 
principle  is  well  settled,  that  trustees  are  not  entitled  to  compen- 
sation for  services  rendered  in  the  performance  of  their  trust.  It 
is  a  principle  not  of  modern  origin,  but  has  been  so  long  estab- 
lished as  to  have  become  an  axiom  in  the  law.  The  cases  on 


296  CASES  IN  CHANCERY. 

State  Bank  at  Elizabeth  v.  Marsh  and  Edgar. 

the  subject,  from  the  earliest  times  to  the  present,  are  collected  in 
'Manning  v.  Manning,  1  John.  C.  It.  527.  In  that  case  the 
trustees  set  up  a  claim  to  a  commission  of  five  per  cent,  for  their 
care  and  trouble  in  the  management  of  the  estate,  and  it  was  ex- 
pressly disallowed:  the  court  holding  that  they  were  entitled  only 
to  charges  and  expenses;  or,  in  the  language  of  the  court,  "just 
allowances."  If,  therefore,  this  question  rested  on  general  princi- 
ples, I  should  have  no  hesitation  in  saying  that  the  exception  was 
well  taken.  But  in  this  case  I  am  to  look  for  the  true  rule  in  the 
decree  already  made  by  the  court.  The  master  was  to  be  guided 
by  that,  and  the  inquiry  is,  whether  he  has  pursued  his  instruc- 
tion. By  the  interlocutory  degree,  which  appears  to  have  been 
settled  with  great  care,  the  master  was  directed,  in  taking  the 
account,  to  make  and  allow  to  Marsh  and  Edgar  "a  just  com- 
pensation for  their  trouble,  charges  and  expenses  in  taking  care 
of  the  said  property,  making  sales  thereof,  or  otherwise  in  and 
about  the  same."  If  I  understand  the  meaning  of  this  direction, 
it  is,  that  the  defendants  shall  not  only  be  allowed,  in  taking  the 
account,  for  their  charges  and  expenses,  but  also  for  their  trouble 
and  care  in  executing  the  trust — not  merely  in  taking  care  of  the 
property,  but  in  making  sale  of  it,  or  otherwise  in  and  about  the 
same.  Such  kind  of  trouble  and  care  is  usually  compensated  in 
the  shape  of  commissions.  It  is  in  this  way  that  executors,  ad- 
ministrators and  guardians  are  compensated,  and  it  is  preferable 
to  the  allowance  of  a  gross  sum.  The  master,  it  seems,  has 
divided  this  direction.  He  has  allowed  the  trustees  for  their 
trouble,  &c.  in  taking  care  of  the  property,  twenty  dollars  per  an- 
num ;  and  then  for  making  sale  of  the  real  and  personal  proper- 
ty, and  collecting  and  disbursing  the  money,  he  has  allowed  them 
a  regular  commission.  I  see  no  particular  objection  to  this  mode. 
The  master  might  have  put  both  together  :  by  separating  them 
he  has  given  his  view  more  clearly,  and  enabled  the  court  to 
judge  more  distinctly  of  its  correctness.  To  the  first  item  there 
is  no  exception,  and  I  do  not  see  how  there  could  be  with  any 
reason.  Ten  dollars  a  year  to  each  trustee,  is  a  very  moderate 
compensation  for  the  management  of  the  property.  The  excep- 
tion to  the  second  item,  (the  commissions,)  so  far  as  regards  the 
right  of  allowance  under  the  decree,  is  not  well  taken  :  neverthe- 


APRIL  TERM,  1831.  297 

State  Bank  at  Elizabeth  v.  Marsh  and  Edgar. 

less  it  does  appear  to  me  that  the  rate  of  commissions  allowed  by 
the  master  is  too  high.  Six  per  cent,  is  a  liberal  allowance  for 
commissions  on  the  personal  estate,  but  much  higher  than  is 
usually  allowed  to  executors  and  administrators  on  the  sale  of 
real  estate,  especially  where  the  amount  is  considerable;  and  I 
cannot  think  that  these  trustees  stand  before  the  court  in  the  situ- 
ation that  executors  ordinarily  do.  Considering  that  an  allowance 
is  made  for  their  trouble  in  managing  the  estate,  my  opinion  is  that 
the  commission  should  be  reduced  from  six  to  four  per  cent,  on  the 
whole  sum. 

8.  The  eighth  exception,  relative  to  the  recognizance  to  Abigail 
Blanchard,  is  not  well  taken  and  must  be  overruled. 

9th  Exception  is,  that  the  master  has  made  a  statement  of  pay- 
ments made  by  defendants,  on  accouut  of  the  debts  of  James  Smith, 
but  does  not  decide  and  specify  which  payments  are  to  be  allowed. 

J>y  the  decree  the  master  was  directed  to  take  "  an  account  of 
the  payments  made  by  the  said  Marsh  and  Edgar  for  and  on  ac- 
count of  the  said  debts  due  and  owing  from  the  said  James 
Smith,  and  of  the  dates  and  amounts  of  such  payments,  respect- 
ively." The  master  has  complied  with  the  order,  and  made  a 
detailed  statement;  and  in  this  he  has  done  right.  But  it  is 
necessary  that  something  further  should  be  done  before  the 
court  can  proceed  to  make  a  final  decree.  There  should  be  a 
statement  made  of  the  whole  amount  of  trust  moneys  that  have 
come  to  their  hands,  or  with  which  they  are  to  be  charged,  ac- 
cording to  the  interlocutory  decree  and  the  directions  now  given  ; 
and  of  the  allowances  to  be  made  them  for  moneys  retained  or 
paid  by  them  according  to  the  trust.  The  trust  property  having 
been  sold  since  the  master's  report,  he  will  now  have  it  in  his 
power  to  take  and  state  an  account  which  will  present  the  whole 
matter  to  the  court  in  one  view,  and  enable  it  to  make  a  final  de- 
cree. To  this  end,  I  will  refer  it  back  to  him  to  take  and  state 
such  an  account — charging  interest  on  the  payments  and  receipts, 
respectively,  upon  the  principles  adopted  in  the  concluding  part  of 
the  report. 

The  question  of  costs  is  reserved  until  the  coming  in  of  this 
report. 

CITED  in  Warbass  v.  Armsti  ong,  2  Stockt.  264. 


298  CASES  IN  CHANCERY. 

Disborough  v.  Outcalt  et  al. 
JOHN  H.  DISBOROUGH  v.  JOHN  OUTCALT  AND  OTHERS. 


O.  contracted  with  H.  and  B.  for  the  purchase  of  a  lot  of  land,  procured  ma- 
terials, and  borrowed  money,  which  he  applied  to  the  erection  of  mills  and 
improvements  on  the  property ;  but  becoming  embarrassed,  and  these  debts 
remaining  unpaid,  H.  and  B.,  at  the  request  of  O.,  conveyed  the  property  to 
his  son-in-law  P. ;  who  gave  his  own  bonds  and  mortgages  on  the  premises 
for  the  purchase  money  for  the  land,  the  cost  of  materials,  and  money  bor- 
rowed to  erect  the  buildings ;  and  agreed  in  writing  that  O.  might  redeem 
the  property,  by  reimbursing  the  monies  so  secured.  This  gave  O.  an  equi- 
table right;  he  was  at  liberty  to  take  the  property,  on  paying  the  purchase 
money  and  the  incumbrances :  and  if  at  any  time  he  had  done  this,  he  might 
have  compelled  a  conveyance  from  P. 

While  things  remained  in  this  situation,  O.  confessed  a  judgment  to  D.,  upon 
which  execution  was  taken  out,  and  levied  on  the  right  of  O.  in  this  pro- 
perty ;  after  which  in  consideration  of  another  debt  due  from  O.  to  N.  B., 
for  money  advanced  to  complete  these  improvements,  P.  conveys  the  pro- 
perty to  N.  B.  in  fee,  subject  to  the  mortgages.  The  right  of  O.  in  the  pro- 
perty was  subsequently  sold  by  the  sheriff,  on  the  judgment  and  execution  of 
D.,  and  conveyed  to  D.,  who  became  the  purchaser.  In  this  case,  O.  never 
having  had  the  legal  estate  in  the  premises  vested  in  him,  not  having  paid 
the  purchase  money,  or  executed  his  contract,  and  not  being  in  a  situation 
to  demand  a  deed,  had  a  mere  equitable  interest  or  trust,  not  subject  to  the 
operation  of  a  judgment  and  execution  at  law,  which  could  not  be  sold  and 
conveyed  by  tke  sheriff';  and  the  conveyance  passed  no  title  to  D. 

At  law,  a  judgment  and  execution  constitute  no  lien  on  mere  equitable  rights, 
which  are  not  susceptible  of  delivery,  or  possession:  they  operate  on  legal 
rights  only;  there  must  be  a  seisin,  and  this  term  always  has  reference  to  a 
legal  title.  The  same  principle  is  established  in  reference  to  mere  equita- 
ble interests  in  personal  property  ;  they  are  not  subject  to  levy  and  sale. 

On  this  subject  the  decisions  in  courts  of  equity  are  in  accordance  with  those 
at  law  ;  they  consider  the  rights  growing  out  of  a  judgment  and  execution  at 
law,  as  legal  rights:  and  while  this  court  will,  on  various  principles  of 
equity,  aid  the  courts  of  common  law  in  the  prosecution  of  legal  rights,  it 
will  not  undertake  to  enlarge  or  extend  them. 

Courts  of  equity  will,  in  some  cases,  aid  execution  creditors  to  obtain  satisfac- 
tion of  their  demands.  But  to  warrant  its  interference,  there  must  be  some 
equitable  ground  presented  ;  the  case  must  be  infected  with  fraud,  or  it  must 
involve  some  trust  or  other  matter  of  peculiar  equity  jurisdiction. 

When  a  party  comes  into  this  court  to  obtain  satisfaction  of  a  judgment,  he 
must  present  himself  under  some  head  of  equity  jurisdiction  :  he  must  show 
that  the  debtor  has  made  some  fraudulent  disposition  of  his  property,  or  that 
the  case  stands  infected  with  some  trust,  collusion  or  injustice,  against 
which  it  is  the  province  of  this  court  to  give  relief. 


APRIL  TERM,  1831.  299 

Disborough  v.  Outcalt  et  al. 

In  cases  of  fraudulent  transfers  or  assignments,  the  court  will  consider  the  con- 
veyance as  void,  and  the  property  as  bound  by  the  judgment  and  execu- 
tion ;  and  will  give  effectual  relief  to  the  diligent  creditor. 

It  \\ill  interfere  to  remove  equitable  incumbrances,  standing  in  the  way  of  the 
parties'  claim  at  law  ;  and  being  once  possessed  of  the  case,  it  will  ascer- 
tain and  settle  the  rights  of  all  parties  concerned. 

In  cases  of  direct  trust,  such  as  mortgages  of  real  estate,  and  pledges  of  personal 
property,  the  court  will  give  aid  on  its  own  peculiar  principles. 

An  execution  creditor  at  law,  has  a  right  to  come  into  this  co.urt  and  redeem 
an  inciunbrance  upon  a  chattel  interest,  in  like  manner  as  a  judgment 
creditor  at  law  is  entitled  to  redeem  an  incumbrance  upon  the  real  estate  ; 
and  the  party  so  redeeming  will  be  entitled  to  a  preference  according  to  his 
legal  priority. 

A  party,  by  his  execution  at  law,  obtains  no  vested  interest  in  mere  equitable 
rights,  such  as  this  court  will  aid  him  in  securing;  unless  they  are  con- 
nected with  some  fraudulent  or  colorable  disposition  of  property  ;  or  some 
direct  trust,  where  the  contract  has  been  executed  and  the  cestui  que  trust  is 
in  a  situation  to  call  on  the  trustee  for  the  property  ;  or  where  there  is  a  right 
of  redemption,  as  in  cases  of  pledges  or  mortgages. 

T.  contracts  to  sell  to  O.  forty  acres  of  land  for  four  hundred  dollars,  half  of 
which  was  paid  at  the  time,  and  the  other  half  to  be  paid  on  the  delivery 
of  a  deed  :  T.  transfers  all  his  right  jn  the  article  of  agreement,  and  the 
money  due  on  it,  to  G.,  and  furnishes  him  with  a  deed,  to  be  delivered  to 
O.  on  the  payment  of  the  money ;  G.  tenders  the  deed  to  O.  and  demands 
payment,  which  is  refused  :  G.  then  assigns  the  agreement  to  D. :  D.  obtains 
judgment  and  execution  against  O.  for  another  debt,  under  which  the  right 
of  O.  in  the  premises  is  sold  and  conveyed  by  the  sheriff  to  D. :  D.  in  his 
bill  now  prays,  that  T.  may  be  decreed  to  convey,  and  O.  to  release  to  him, 
all  their  right  in  the  premises.  In  this  case  the  legal  right  to  the  premises 
was  not  transferred  to  D.  by  the  assignment  of  the  agreement ;  nothing 
passed  by  it  but  the  right  to  raise  the  two  hundred  dollars  of  purchase  money 
remaining  due. 

D.  acquired  no  title  by  the  sheriff's  sale  of  the  right  of  O.,  because  no  title 
was  vest-ed  in  him  ;  his  right,  under  the  agreement,  being  that  of  a  pur- 
chaser under  a  contract  unexecuted.  D.  can  have  no  relief  under  the  present 
bill. 

Semble.  That  D.  might  have  had  a  decree  for  a  specific  performance,  on  a  bill 
filed  for  that  purpose,  against  all  parties  concerned. 


J.  Outcalt  contracted  with  J.  R.  Hardenburgh  and  J.  H. 
Bostwick  for  the  purchase  of  a  lot  of  land  ;  he  took  possession  of 
it,  and  erected  mills  and  made  other  improvements  thereon,  and 
has  since  continued  to  occupy  and  use  it  as  his  own.  Being  em- 
barrassed, and  not  having  paid  the  purchase  money  for  the  lot, 


300  CASES  IN  CHANCERY. 

Disborongh  v.  Outcalt  et  al. 

being  also  indebted  for  the  materials  for  the  buildings,  and  money 
borrowed  to  pay  the  expense  of  erecting  them  ;  the  property,  at 
his  request,  was  conveyed  by  Hardenburgh  and  Bostwick  to 
Pierson  (Outcalt's  son-in-law)  who  gave  his  own  bonds  and  mort- 
gages on  the  premises,  to  Hardenburgh  for  part  of  the  purchase 
money  and  the  cost  of  materials,  and  to  the  trustees  of  Rutgers 
college  for  money  borrowed  to  pay  for  erecting  the  buildings  ;  in 
which  it  was  said,  and  not  denied,  that  a  portion  of  the  purchase 
money  was  also  included  ;  and  agreed  that  Outcalt  might  redeem 
the  premises  on  reimbursing  the  moneys  so  paid.  Outcalt  being 
further  indebted  to  the  bank  of  New-Brunswick,  for  money  had  from 
time  to  time  to  complete  the  improvements  on  the  property,  Pierson, 
with-hrs  consent,  conveyed  the  property  to  the  bank,  in  fee,  subject 
to  the  prior  mortgages,  in  satisfaction  of  this  debt  to  the  bank. 

Outcalt  had  also  contracted  with  G.  Taylor  for  the  purchase 
of  another  lot  of  forty  acres,  for  four  hundred  dollars  ;  half  of 
which  was  paid,  in  notes,  at  the  time,  and  the  other  half  to  be 
paid  on  the  delivery  of  the  deed.  Taylor  assigned  all  his  right 
in  this  agreement,  and  the  money  due  thereon,  to  W.  Gordon, 
and  delivered  him  a  deed  for  the  premises,  to  be  delivered  to  Out- 
calt on  the  payment  of  the  money.  Gordon  tendered  the  deed  to 
Outcalt,  and  demanded  payment  of  the  money,  which  was  re- 
fused. Gordon  then  transferred  the  agreement  to  Disborough,  the 
complainant. 

After  this,  while  the  title  to  the  mill  lot  was  in  Pierson,  before 
his.  conveyance  to  the  bank,  Disborough  obtains  judgment 
against  Outcalt  for  an  old  debt ;  upon  which  execution  was  issued 
and  levied  on  all  the  right  of  Outcalt  in  both  these  lots;  and 
after  the  conveyance  of  the  mill  lot  by  Pierson  to  the  bank,  the 
right  of  Outcalt  in  both  lots  was  sold  under  the  execution,  and 
conveyed  by  the  sheriff  to  Disborough,  who  became  the  purchaser 
for  two  hundred  and  fifty  dollars. 

Disborough  thereupon  filed  his  bill  in  this  court,  against  Outcalt, 
Pierson,  the  bank  of  New-Brunswick,  the  trustees  of  Rutgers  col- 
lege, Hardenburgh  and  Taylor ;  praying,  as  to  the  mill  lot,  that 
the  conveyance  to  Pierson,  and  by  him  to  the  bank,  might  be 
set  aside  as  fraudulent  and  void  against  the  complainant,  and  that 
the  possession  of  the  premises  might  be  delivered  up  to  him :  and 


APRIL  TERM,  1831.  301 

Disborough  v.  Outcalt  et  al. 

as  to  the  other  lot,  that  Taylor  might  be  decreed  to  convey,  and 
Outcalt  to  release,  to  him,  all  their  right  in  the  premises. 

Answers  were  put  in  by  Hardenburgh,  Outcalt,  Pierson,  and  the 
bank,  and  witnesses  were  examined.  The  facts,  as  far  as  they 
are  material,  appear  in  the  opinion  of  the  court.  The  case  was 
argued  by 

Th.  Frdinghuysen,  for  the  complainant  ; 

C.  L.  Hardenburgh  and  G.  Wood,  for  the  defendants. 

Cases  cited  :  —  For  complainant  ;  Rev.  L.  148  ;  s.  1,  2  ;  ib.  430, 
s.  1,  2;  ib.  433,  s.  12;  4  Qrif.  L.  R.  1225-6;  3  John.  C.  R.  216; 
4  John.  C.  R.  450,  454;  ib.  671  ;  ib.  687;  Amb.  R.  79.;  ib.  596  ; 
7  John.  C.  R.  208  ;  5  John.  C.  R.  280;  17  John.  R.  35  L;  20  John. 
R.  504;  7  Bac.  Ab.  Trust  A. 

For  defendants:  Sac.  Ab.,  Execution,  C.  ;  1  John.  C.  R.  52-5  ; 

1  Hop.  R.  59;    5  Hal.  R.  193,  201;    18  John.  R.  98;  7  John.  R. 
206  ;  8  East.  R.  467  ;  5  £os.  and  P.  461-2  ;  5  John.  R.  335-45; 
3  John.  R.  222,  n.  6  ;    1  John.  C.  R.  16  ;    2  John.  C.  R.  312;  ib. 
283;  2  Fes.  jr.  95  ;  1  Ves.jr.  196  ;  1  Am.  381  ;  1  Cam  (7.  ^.  64; 

2  A&  .R.  600  ;  3  Atk.  R.  192,  356. 


THE  CHANCELLOR.  It  appears  from  the  pleadings  and  evi- 
dence in  this  cause,  that  prior  to  May,  1824,  John  Outcalt,  one  of 
the  defendants,  contracted  with  John  H.  Bostwick  and  Jacob  R. 
Hardenburgh,  for  the  purchase  of  a  lot  of  land  and  premises,  of 
about  forty  acres,  in  the  township  of  South  Amboy,  in  the  county 
of  Middlesex;  and  that  being  in  embarrassed  circumstances,  be 
caused  the  deed  for  the  said  property  to  be  made  out  to  his  son-in- 
law,  Daniel  P.  Pierson,  with  the  consent  of  the  said  Pierson.  The 
object  of  Outcalt,  as  stated  in  his  answer,  was,  that  he  might  "  pro- 
cure some  property  on  which  to  reside  :  that  being  unable  himself 
to  purchase  property,  and  destitute  of  money,  his  son-in-law  agreed 
to  become  the  purchaser,  and  took  the  deed  for  the  same  in  his  own 
name."  It  does  not  appear  what  was  the  amount  of  the  purchase 


302  CASES  IN  CHANCERY. 

Disborotigh  v.  Outcalt  et  al. 

money,  but  as  the  property  was  in  an   unimproved  state  at  that 
time,  it  is  probable  the  sum  to  be  paid  for  it  was  not  large. 

The  contract  for  this  property  was  made  some  considerable  time 
before  the  deed  was  given  to  Pierson.  In  the  meantime,  Outcalt 
was  in  possession.  He  erected  a  grist  mill  and  snuff  mill,  and 
made  other  improvements,  which  greatly  enhanced  the  value  of  the 
property.  In  making  these  improvements,  Outcalt  became  in- 
debted to  Hardenburgh  for  materials.  To  secure  this  debt,  and 
also  a  part  of  the  purchase  money,  Pierson,  on  the  6th  day  of  May, 
1824,  executed  to  Hardenburgh  a  mortgage  on  the  premises  for 
one  thousand  dollars,  which  was  duly  registered.  On  the  same 
day,  Pierson  gave  his  bond  and  a  mortgage  on  the  same  property 
to  the  trustees  of  Rutgers  college,  for  the  sum  of  two  thousand  dol- 
lars. This  sum  was  appropriated  by  Outcalt  for  the  payment  of 
the  improvements  before  mentioned.  The  deed  to  Pierson  bears 
date  on  the  4th,  and  the  mortgages  to  Hardenburgh  aud  the  trus- 
tees of  Rutgers  college  on  the  6th  May,. 1824. 

Previous  to  this  period,  Outcalt  became  indebted  to  the  com- 
plainant for  goods,  wares  and  merchandise,  money  lent,  &c.  to  a 
considerable  amount;  and  on  the  4th  of  October,  1825,  confessed 
a  judgment  to  him  for  one  thousand  four  hundred  and  sixteen  dol- 
lars and  seventy  cents.  On  this  judgment  an  execution  issued  in 
March,  1826;  and  on  the  31st  August,  1826,  the  sheriff  of  the 
county  of  Middlesex  sold  the  right  and  interest  of  Outcalt  in  this 
property,  and  also  in  a  certain  other  lot  of  about  forty  acres,  situate 
in  the  same  county;  and  the  complainant  became  the  purchaser, 
for  the  sum  of  two  hundred  and  fifty  dollars.  The  sheriff's  deed 
bears  date  on  the  19th  September,  1826. 

It  appears  further,  that  in  order  to  complete  the  improvements, 
Outcalt  procured  money  at  various  times  from  the  bank  of  New- 
Brunswick,  and  that  for  the  purpose  of  securing  the  payment  of 
said  sums,  Pierson,  on  the  5th  August,  1826,  executed  to  the  bank 
a  deed  in  fee  simple  for  the  first  mentioned  property.  This  deed 
was  subsequent  to  the  judgment  and  execution  of  Disborough,  the 
complainant,  and  prior  to  the  sale  and  sheriff's  deed. 

It  appears  also,  by  the  answer  of  Pierson,  that  he  executed  a 
paper,  agreeing  to  give  Outcalt  a  right  of  redemption  to  the  prop 
erty,  when    he,  Pierson,  should    be    reimbursed.      This  paper  is 


APRIL  TERM,  1831.  303 

Disborongh  v,  Outcalt  et  al. 

missing,  and  cannot  be  produced  ;  nor  is  it  known  to  the  court  at 
what  time  it  was  given. 

A  part  of  the  mortgage  money  was  paid  to  Hardenburgh  on  his 
mortgage,  bnt  it  is  not  shown  who  paid  it;  and  the  interest  on  the 
mortgage  to  the  trustees  of  Rutgers  college  remained  unpaid  until 
after  the  conveyance  of  the  property  to  the  bank  of  New-Bruns- 
wick, when  it  was  settled  by  the  bank. 

Under  these  circumstances  the  complainant  comes  into  this  court 
for  relief,  and  prays  that  the  deed  from  Bostwick  and  Hardenburgh 
to  Pierson,  may  be  decreed  fraudulent  and  void  as  against  the 
creditors  of  Outcalt,  and  especially  as  against  the'complainant:  and 
also  that  the  conveyance  from  Pierson  to  the  bank  may  be  declared 
void  as  against  the  complainant,  and  they  be  decreed  to  render  to 
him  the  possession  of  the  said  property. 

On  this  part  of  the  case  the  controversy  is  between  the  com- 
plainant and  the  bank  of  New-Brunswick.  It  is  admitted  on  both 
sides,  that  the  mortgages  to  Hardenburgh  and  the  trustees  of  Rut- 
gers college  must  be  paid.  They  were  given  by  the  person  holding 
the  legal  title,  and  before  the  judgment  and  execution  of  the  com- 
plainant, and  of  consequence  before  he  could  have  had  any  lien  on 
the  premises. 

With  this  brief  view  of  the  leading  facts  of  the  case,  I  propose 
to  inquire,  in  the  first  place,  what  was  the  nature  of  Outcalt's  right 
in  the  property,  at  the  time  Disborough  levied  on  it  by  virtue  of 
his  execution. 

I  think  there  is  no  doubt  that  Outcalt  originally  contracted  with 
Hardenburgh  and  Bostwick  for  the  property.  It  is  not  in  evi- 
dence that  he  paid  any  part  of  the  purchase  money.  It  is  proba- 
ble, from  circumstances,  that  most  of  the  improvements  were 
made  by  Outcalt,  while  he  held  the  property  under  contract. 
They  were  doubtless  made  for  his  own  benefit,  as  he  states  in  his 
answer.  It  appears,  however,  that  no  part  of  these  improve- 
ments were  paid  for  by  Outcalt;  and  that  after  the  deed  was  made 
to  Pierson,  in  May,  1824,  whereby  he  became  the  legal  owner 
of  the  property,  he  gave  his  own  bonds  to  the  trustees  of  Rutgers 
college  for  the  moneys  that  had  been  borrowed  of  them  for  the 
purpose  of  erecting  the  improvements;  and  also  gave  to  Harden- 
burgh his  own  bond  for  the  money  due  him  for  materials,  in 


304  CASES  IN  CHANCERY. 

Disborough  v.  Outcalt  et  ml. 

which  bond  was  included  part  of  the  original  consideration  given 
for  the  property.  These  bonds  were  both  secured  by  mortgages 
on  the  property.  The  legal  estate  then  was  in  Pierson.  He  re- 
ceived the  conveyance  from  the  grantors ;  and  he  was  personally 
bound,  not  only  for  a  portion  of  the  original  purchase  money, 
but  for  the  value  of  all  the  improvements.  Outcalt,  nevertheless, 
was  in  possession  of  the  property.  He  had  the  management  and 
control  of  it,  and  reaped  the  benefit.  And  there  was  an  agree- 
ment that  Outcalt  should  have  the  right  of  redeeming  the  pro- 
perty when  Pierson  should  be  reimbursed.  This  gave  to  Outcalt 
an  equitable  right.  He  was  at  liberty  to  take  the  property,  on 
paying  the  purchase  money  and  the  incumbrances ;  and  if  at  any 
time  he  had  done  this,  he  might  have  compelled  a  conveyance  from 
Pierson. 

Such  was  the  situation  of  things,  and  such  the  nature  of  Out- 
calt's  right,  when  he  confessed  the  judgment  to  Disborough,  and 
when  Disborough  levied  on  the  property.  The  right  of  Outcalt 
rested  merely  in  equity.  He  had  never  paid  off  the  incumbrances, 
and  thereby  placed  himself  in  a  situation  to  demand  a  title  at  the 
hands  of  Pierson. 

"What  then,  in  the  second  place,  was  the  effect  of  the  proceedings 
against  Outcalt ;  and  what  rights  or  advantages,  if  any,  did  they 
secure  to  the  complainant? 

Considering  the  interest  of  Outcalt  as  strictly  an  equitable  interest, 
it  could  not  be  legally  operated  on  by  the  judgment,  levy,  or  sale. 
I  take  the  principle  to  be  settled,  that  at  law,  a  judgment  and  ex- 
ecution constitute  no  lien  on  mere  equitable  rights.  They  are  not 
susceptible  of  delivery  or  possession.  The  words  of  our  act  of 
assembly  making  lands  liable  to  be  sold  for  the  payments  of  debts, 
though  broad,  do  not  embrace  them :  Rev.  Laws,  433.  By  the 
first  section,  all  lands,  tenements,  hereditaments  and  real  estate, 
are  made  liable  to  be  levied  on  and  sold  by  execution  ;  and  by 
section  twelfth- the  sheriff  is  directed  to  make  to  the  purchaser  "as 
good  and  sufficient  a  deed  or  conveyance  for  the  lands,  tenements, 
hereditaments  and  real  estate  so  sold,  as  the  person  against  whom 
the  writ  or  writs  of  execution  were  issued  might  or  could  have 
made  for  the  same,  at  or  before  the  time  of  rendering  judgment 
against  him."  It  was  contended  at  the  bar  that  these  words  were 


APRIL  TERM,  1831.  305 

Disborough  v.  Outcalt  et  al. 

sufficiently  comprehensive  to  embrace  equitable  estates;  and  the 
opinion  of  Mr./  Griffith,  in  the  4th  vol.  of  his  Law  Rey.  1225-6, 
was  cited  to  sustain  the  argument.  The  learned  editor  of  that 
valuable  work  gives  a  very  decided  opinion,  that  trust  estates 
may  under  our  statute,  be  levied  on  and  sold  by  execution.  I 
have  not  so  understood  the  law.  Judgments  and  executions  op- 
erate on  legal  estates  only.  There  must  be  a  seisin,  and  this 
term  always  has  reference  to  a  legal  title.  Under  the  statute  of 
Westminster  2d,  (13  Ed.  I.  c.  18,)  it  was  always  held  that  a 
trust  estate  could  not  be  extended.  The  power  was  given  by  the' 
29th  Cha.  II.  ch.  3.  This  statute  has  not  been  re-enacted  in  this 
state,  and  the  provisions  of  our  act,  before  recited,  do  not  em- 
brace it.  In  the  state  of  New-York,  lands  held  in  trust  may  be 
seized  on  a  fi.  fa.  against  cestuis  que  trust,  but  that  is  by  special 
statute.  In  the  case  of  Foote  and  Litchfield  v.  Colvin  and  al. 
3  Johns.  R.  222,  Spencer,  J.,  seemed  to  think  that  a  trust  pro- 
perty might  be  sold  without  the  aid  of  the  statute.  And  in 
the  case  of  Jackson  v.  Parker,  9  Cowen  73,  this  opinion 
is  approved.  But  in  this  state  a  different  doctrine  is  maintain- 
ed. In  the  late  case  of  Denv.  Sleelman,  5  Hals.  193,  it  was, 
held  that  a  purchaser  at  sheriff's  sale  had  not,  before  the  delivery 
of  the  sheriff's  deed,  such  an  interest  in  the  property  as  could  be 
seized  on  and  sold  by  execution.  This  case  was  decided  upon  full 
deliberation,  and  if  there  was  any  doubt  before,  may  be  considered 
as  entirely  removing  it. 

The  same  principle  is  established  in  reference  to  mere  equita- 
ble interests  in  personal  property.  They  are  not  subject  to  levy 
and  sale.  In  Scott  v.  Soholcy,  8  East.  467,  the  court  of  king's 
bench  held,  that  a  mere  equitable  interest  in  a  term  of  years  could 
not  be  taken  in  execution  by  the  sheriff  under  a  writ  of  fi.  fa. ; 
and  Ld.  Ellenborough,  C.  J.,  said  that  no  single  instance  was  to 
be  found  in  the  courts  of  common  law  in  which  such  an  equitable 
interest  had  ever  been  recognized  as  salable  under  a  fi.  fa.  And 
in  Wilkes  and  Fontaine  v.  Ferris,  5  Johns.  335,  it  was  decided 
that  where  personal  property  had  been  assigned  for  the  payment 
of  certain  debts,  that  the  residuary  interest  remaining  in  the  as- 
signor, after  the  purposes  of  the  assignment  were  fully  answered, 

C7 


306  CASES  IN  CHANCERY. 

Disborough  v.  Outcalt  et  al. 

was  not  such  an  interest  as  could  be  taken  and  sold  on  execu- 
tion. 

The  decisions  in  equity  on  this  subject  are  in  accordance  with 
those  at  law.  They  consider  the  rights  growing  out  of  a  judg- 
ment and  execution  at  law  as  legal  rights ;  and  while  this  court 
will,  on  various  principles  of  equity,  aid  the  courts  of  common  law 
in  the  prosecution  of  legal  rights,  it  will  not  undertake  to  enlarge 
or  extend  them.  In  the  case  of  Bryant  v.  Perry,  1  John.  C.  R. 
56,  Chancellor  Kent  recognized  the  principle  that  a  judgment  at 
law  is  no  lien  on  a  mere  equitable  interest  in  land  ;  and  the  .exe- 
cution under  such  judgment  will  not  pass  an  interest  that  a  court 
of  law  cannot  protect  and  enforce.  And  in  2  J.  C.  R.  312,  Hen- 
dricks  v.  Robertson,  the  same  chancellor  says,  "  I  do  not  know 
of  any  case  in  which  a  court  of  equity  has  considered  an  execu- 
tion at  law  as  binding  an  equitable  right.  The  idea  is  altogether 
inadmissible.  If  the  execution  cannot  sell,  there  is  no  reason  why 
it  should  affect  or  bind  a  mere  equity,  a.nd  the  doctrine  would  be 
equally  inconvenient  and  absurd."  The  correctness  of  this  doc- 
trine is  admitted  by  Chancellor  Saudford,  in  the  case  of  Donovan 
v.  Finn,  HopJc.  74.  See  also  on  this  subject  Dundas  v.  Duters, 
1  Ves.  jr.  196;  Utterson  v.  Hair,  2  Ves.  jr.  95;  Cailland  v. 
Estnick,  Anst.  381. 

But  the  present  case  is  peculiar,  and  would  require  great  libe- 
rality on  the  part  of  the  court  to  bring  it  within  the  rule  contend- 
ed for.  The  purchase  money  is  not  paid  by  Outcalt.  The  im- 
provements are  not  paid  for,  and  the  amount  of  them  is  secured 
on  the  property.  He  was  not,  at  the  time  of  the  judgment  and  ex- 
ecution, in  a  situation  to  demand  a  deed.  His  contract  was  un- 
executed, and  his  interest  rested  merely  in  contingency.  An  in- 
terest or  trust  of  so  complicated  a  character,  is  not  a  proper  subject 
matter  to  be  operated  on  by  an  execution  at  law. 

Taking  it  for  granted,  therefore,  that  the  proceedings  against 
Outcalt  had  no  legal  operation,  and  passed  no  estate  to  the  pur- 
chaser, the  question  still  recurs,  what  rights  and  advantages,  if 
any,  did  they  secure  to  the  complainant?  Was  the  equitable 
right  of  the  defendant,  Outcalt,  attached,  if  I  may  make  use  of 
the  term,  by  the  judgment  or  execution,  or  did  they  operate  as 
an  equitable  lien  on  it,  so  as  to  give  them  a  preference  to  the  claim 


APRIL  TERM,  1831.  307 

Disborough  v.  Outcalt  et  al. 

of  the  bank,  and  render  the  conveyance  to  the  bank  illegal  and 
invalid?  The  question,  how  far  mere  equitable  rights,  property 
not  tangible  by  an  execution  at  law,  may  be  reached  by  this 
court,  independent  of  fraud,  trust,  or  some  other  distinct  ground 
of  equity  jurisdiction  as  a  foundation  for  the  interference,  has 
often  been  agitated  in  the  courts,  and  in  some  instances  the  deci- 
sions can  scarcely  be  reconciled.  The  later  opinion  of  Ch.  Kent 
appears  to  have  been,  that  the  power  of  the  court  was  sufficient 
to  reach  them :  Bayard  v.  Hoffman,  4  John.  C.  R.  450.  And 
in  the  recent  case  of  Egberts  v.  Pemberton,  7  John.  C.  R.  208, 
the  court  seemed  to  consider  that  a  judgment  debt,  being  a  de- 
mand reduced  to  a  certainty,  might,  without  any  very  great 
stretch  of  presumption,  .be  looked  on  as  so  much  money  held  in 
trust;  and  at  the  instance  of  a  creditor,  the  plaintiff  in  the  judg- 
.ment  was  restrained  from  collecting  the  money  on  the  execution. 
But  on  a  careful  examination  of  the  cases,  I  incline  to  think  that 
such  a  result  is  not  fairly  deducible  from  them,  and  that  the  opin- 
ion is  not  well  founded. 

Courts  of  equity  will,  in  some  cases,  aid  execution  creditors  to 
obtain  satisfaction  of  their  demands.  It  has  for  this  purpose  a 
suppletory  power.  But  to  warrant  its  interference,  there  must  be 
some  equitable  ground  presented.  The  case  must  be  infected  with 
fraud,  or  it  must  involve  some  trust  or  other  matter  of  peculiar 
equity  jurisdiction.  The  court  will  then  act  oft  its  own  established 
principles,  and  afford  such  relief  as  the  situation  of  the  parties  re- 
quires and  the  nature  of  the  case  will  admit. 

It  is  on  one  or  other  of  these  grounds  that  the  courts  of  equity 
have  usually  proceeded.  In  Taylor  v.  Jones,  2  Atk.  600,  there 
was  a  voluntary  conveyance  of  government  stock  made  by  a  man 
to  trustees,  for  the  benefit  of  his  wife  and  children ;  but  being 
made  after  marriage,  and  not  in  consideration  of  marriage,  it  was 
held  fraudulent.  And  the  question  was  not,  whether  property  of 
that  kind  could  be  reached  by  the  court,  but  whether  the  assign- 
ment was  fraudulent  under  the  statute  of  13th  Elizabeth.  The 
case  of  Partridge  v.  Goff,  Amb.  596,  was  decided  expressly  on 
the  ground  of  fraud.  There  was  a  voluntary  gift  for  the  purpose 
of  defeating  creditors,  and  Ld.  Northington  held  that  no  man  has 
such  power  over  his  property  as  to  dispose  of  it  to  defeat  creditors, 


308  CASES  IN  CHANCERY. 

Disborough  v.  Outcalt  et  al. 

unless  for  consideration.  The  case  was  within  the  statute  of  frauds. 
Even  the  case  of  Bayard  v.  Hoffman,  4  John.  C.  R.,  in  which  Ch. 
Kent  assumes  the  principle,  (on  the  strength  of  the  cases  above 
cited,)  that  the  property  might  be  reached  without  fraud,  was  the 
case  of  a  voluntary  settlement  by  an  insolvent  debtor,  which  was 
admitted  to  be  void  under  the  statute. 

In  cases  of  fraudulent  transfers  or  assignments,  the  court  will 
look  on  the  property  as  bound  by  the  judgment  and  execution, 
and  will  give  effectual  relief  to  the  diligent  creditor.  See  the  case 
of  Hadden  v.  Spade)',  20  John  R.  554,  and  the  authorities  there 
cited. 

So,  likewise,  in  cases  of  direct  trusts,  such  as  mortgages  of 
real  estate,  and  pledges  of  personal  estate,  this  court  will  give  aid 
on  its  own  peculiar  principles.  It  will  interfere  to  remove  equita- 
ble incumbrances  standing  in  the  way  of  the  party's  claim  at 
law;  and  being  once  possessed  of  the  case,  it  will  proceed  to 
ascertain  and  settle  the  rights  of  all  parties  concerned.  There 
can  be  no  doubt  that  "an  execution  creditor  at  law  has  a  right  to 
come  into  this  court  and  redeem  an  incumbrance  upon  a  chattel 
interest,  in  like  manner  as  a  judgment  creditor  at  law  is  entitled  to 
redeem  an  incumbrance  upon  the  real  estate;  and  the  party  so  re- 
deeming will  be  entitled  to  a  preference  according  to  his  legal 
priority."  4  John.  C.  E.  692. 

I  am  fully  aware  that  some  cases  in  New- York  appear  to  have 
carried  the  power  of  the  court  so  far  as  to  reach  equitable  interests 
in  the  hands  of  third  persons,  where  there  was  no  fraud,  and 
where  the  property  could  not  be  considered  as  held  in  pledge  or 
mortgage.  But  most  of  the  cases,  when  examined,  will  appear 
to  have  been  infected  with  fraud.  Even  in  the  case  of  Hadden 
v.  Spader,  20  John.  jR.  564,  (which  has  been  so  much  relied 
on,)  Mr.  Justice  Wood  worth,  who  carried  the  argument  to  the 
greatest  extent,  put  himself  upon  this  principle,  that  a  debtor 
who  had  placed  his  funds  in  the  hands  of  a  trustee,  where  they 
could  not  be  reached  by  an  execution  at  law,  could  not  put  his 
creditors  at  defiance  and  enjoy  the  benefit  of  those  funds;  but 
that  they  ought  to  be  appropriated  to  the  payment  of  his  debts. 
And  Justice  Platt  rests  his  opinion  on  the  ground  that  the  assign- 
ment was  fraudulent,  and  on  that  principle  was  willing  that  the 


APRIL  TERM,  1831.  309 

Disborotigh  v.  Outcalt  et  al. 

aid  of  the  court  should  be  extended  to  the  diligent  creditor.  If 
this  case,  and  the  cases  relied  on  in  support  of  it,  as  decided  by 
Oh.  Kent,  are  to  be  taken  as  extending  beyond  this,  and  reaching 
all  equitable  rights  and  choses  in  action  in  the  hands  of  third 
persons,  without  fraud,  will  it  not  lead  to  this  general  proposition, 
that  this  court  will  take  jurisdiction  and  give  aid  to  the  creditor 
in  all  cases  where  the  debtor  has  property  or  rights  which  cannot 
be  reached  by  execution  at  law ;  and  that  the  creditor  to  whom 
this  relief  is  afforded  shall  have  preference  to  all  others?  The  in- 
junction case  before  mentioned,  in  which  a  judgment  debt  due 
the  defendant  was  actually  impounded  for  the  benefit  of  the  com- 
plainant, shows  how  naturally  the  power  of  this  court  expands  it- 
self, unless  restrained  by  settled  and  fixed  principles.  If  such  a 
debt  or  chose  in  action  could  be  brought  within  the  power  of  the 
court,  so  as  to  be  given  to  an  execution  creditor,  why  not  a  bond 
debt,  a  legacy,  or  even  a  liquidated  claim  upon  simple  contract  ? 
Where  would  the  power  cease  ?  and  what  would  become  of  the 
insolvent  laws,  the  policy  of  which  is  to  distribute  property  rat- 
ably  for  the  benefit  of  all  the  creditors  of  the  insolvent  ?  This 
subject  has  lately  been  before  the  chancery  of  New-York,  in  the 
case  of  Donovan  v.  Finn,  Hopk.  59.  An  attempt  was  there 
made  to  extend  the  power  of  this  court,  so  as  to  reach  a  legacy 
in  the  hands  of  executors.  Donovan  recovered  a  judgment  at  law 
against  Finn,  and  issued  an  execution,  whick  was  returned  nulla 
bona.  Finn  was  at  the  time  entitled  to  a  certain  legacy  left 
him  by  his  brother,  which  was  still  in  the  hands  of  the  executors, 
and  there  was  property  sufficient  to  satisfy  it.  The  plaintiff  at 
law  filed  a  bill  in  equity  against  Finn  and  the  executors  of  his 
brother,  to  have  the  execution  satisfied  out  of  the  legacy.  The 
court  dismissed  the  bill,  and  placed  itself  on  the  ground,  that 
where  a  party  comes  into  this  court  to  obtain  satisfaction  of  a 
judgment,  he  must  present  himself  under  some  head  of  equity 
jurisdiction  :  "  he  must  show  that  the  debtor  has  made  some  frau- 
dulent disposition  of  his  property,  or  that  the  case  stands  infected 
with  some  trust,  collusion  or  injustice,  against  which  it  is  the 
province  of  this  court  to  give  relief."  And  the  chancellor  very 
justly  remarks,  that  "  if  the  court  should  take  cognizance  of  such 
cases,  it  would  form  a  chapter  of  jurisdiction  far  more  ample  than 


310  CASES  IN  CHANCERY. 

Disborough  v.  Outcalt  et  al. 

any  one  it  now  possesses,  and  the  assumption  would  be  a  bolder 
stride  of  power  than  was  ever  made  by  the  English  chancery  in  any 
single  age." 

Considering,  therefore,  as  I  am  inclined  to  do,  that  a  party  by 
his  execution  at  law  obtains  no  vested  interest  in  mere  equitable 
rights,  such  as  this  court  will  aid  him  in  securing,  unless  they  are 
connected  with  some  fraudulent  or  colorable  disposition  of  property  ; 
or  some  direct  trust  where  the  contract  has  been  executed,  and  the 
cestui  que  trust  is  in  a  situation  to  call  on  the  trustee  for  the  pro- 
perty ;  or  where  there  is  a  right  of  redemption,  as  in  cases  of 
pledges  or  mortgages  ;  let  us  next  inquire,  whether  the  interest  of 
Outcalt,  which  was  sought  to  be  affected  by  the  execution,  was  of 
that  character. 

And  in  the  first  place,  was  there  a  fraudulent  transfer,  as- 
signment, or  transaction,  between  Outcalt  and  Pierson,  whereby 
creditors  were- to  be  defeated?  It  appears  that  Outcalt  contracted 
for  a  small  unimproved  property.  It  does  not.appear  that  he  ever 
paid  any  part  of  the  purchase  money,  It  is  proved  that  a  part 
of  it  is  included  in  the  mortgage  to  Hardenburgh  given  by  Pier- 
son  ;  and  it  was  alleged  on  the  argument,  that  another  part  of  it 
is  included  in  the  mortgage  given  to  Rutgers  college  by  Pierson. 
This  was  not  denied.  I  take,  then,  these  matters  to  be  true,  and 
in  the  absence  of  all  proof  to  the  contrary,  go  on  the  principle  that 
Outcalt  paid  no  part  of  the  purchase  money.  Then  the  contract 
was  made  by  Outcalt,  and  for  his  own  benefit.  He  was  to  reside 
there ;  he  had  the  management  of  the  property,  and  procured  the 
consent  of  his  son-in-law  to  take  the  deed  for  the  property.  Still 
Outcalt  did  not  pay  for  the  property,  nor  did  he  secure  the  pay- 
ment. His  creditors  were  not  deprived  of  any  thing.  There  was 
no  assignment  or  transfer  of  property  out  of  his  own  possession 
into  the  hands  of  another,  for  the  purpose  of  defeating  creditors. 
The  deed,  it  is  true,  was  made  to  Pierson ;  but  then  he  had  to  pay 
for  the  land,  and  became  personally  bound.  What,  then,  did 
Outcalt  vest  in  Pierson?  At  most,  nothing  more  than  his  con- 
tract, his  right  to  purchase  and  procure  a  title,  by  paying  the  con- 
sideration ;  and  this  was  upon  condition  that  he  should  possess  the 
property  and  use  it.  Outcalt  improved  the  property,  and  ren- 
dered it  valuable  by  the  erection  of  mills,  &c. ;  but  at  whose  ex- 


APRIL  TERM,  1831.  311 

Disborough  v.  Outcalt  et  al. 

pense?  It  is  not  discovered  that  he  ever  paid  a  dollar  for  any  of 
these  improvements.  The  cost  of  them  is  secured  by  the  personal 
bond  of  Pierson,  accompanied  with  a  mortgage  on  the  property. 
The  result  then  is,  that  Pierson,  who  was  the  son-in-law  of  Out- 
calt, and  with  whose  circumstances  we  are  totally  unacquainted, 
took  a  title  for  the  property,  became  responsible  for  the  payment, 
and  permitted  his  father-in-law  to  live  on  it  and  support  himself 
and  family  if  he  could  do  so,  and  improve  it  for  his  benefit,  he, 
Pierson,  becoming  personally  responsible  for  the  cost  of  the  im- 
provements. All  this  might  take  place  in  perfect  gcbd  faith,  and 
with  the  best  motives.  And,  although  there  are  some  circum- 
stances in  this  case  calculated  to  excite  suspicion,  yet  it  does  not 
present  itself  to  my  mind  as  a  case  of  covinous  conveyance  or 
fraudulent  trust;  and,  consequently,  the  court  cannot  interfere  on 
that  ground. 

It  remains,  then,  to  be  considered,  whether  Outcalt  can  be 
viewed  as  having  an  equity  of  redemption  in  this  property.  It  is 
manifest  he  never  had  any  legal  right.  The  title  of  the  property 
was  never  vested  in  him.  He  had,  at  most,  a  right  to  pay  the 
incumbrances,  and  reimburse  Pierson,  and  then  call  upon  him 
for  a  conveyance.  It  amounted  to  a  contract  for  the  purchase  of 
the  property,  on  the  payment  of  a  certain  consideration.  This 
consideration  was  never  paid,  nor  the  contract  executed  on  his 
part.  Outcalt  was  never  in  a  situation  to  «all  for  a  specific  per- 
formance. This  is  not  like  the  case  of  a  mortgage  or  pledge. 
In  England,  an  equity  of  redemption  cannot  be  sold  by  execu- 
tion at  law ;  but  the  execution  will  give  a  lien  which  a  court  of 
equity  will  protect.  All  that  prevents  the  execution  from  opera- 
ting on  the  mortgaged  property,  is  the  incumbrance.  That  be- 
ing redeemed  in  equity,  the  impediment  being  removed,  and  the 
legal  estate  fully  restored,  the  execution  would  be  effectual  at  law; 
but  chancery  being  possessed  of  the  case,  does  that  which  a  court 
of  law  would  do ;  it  secures  the  preference  of  the  execution  cre- 
ditor. But,  suppose  the  money  paid  in  this  case,  would  the  legal 
title  be  in  Outcalt  ?  Surely  not :  it  would  remaiu  in  Pierson. 
The  estate  of  Outcalt  would  still  be  an  equitable  one,  and  not 
liable  to  be  sold  on  execution ;  though  it  might  then  be  reached 


312  CASES  IN  CHANCERY. 

Disborough  v.  Outcalt  et  al. 

in  equity,  in  the  mode  in  which  his  present  equity  is  sought  to  be 
affected. 

I  am  of  opinion,  therefore,  that  this  case  does  not  come  within 
the  ordinary  jurisdiction  of  the  court;  that  there  is  no  sufficient 
evidence  of  fraud  ;  and  that  Outcalt  had  no  such  right  or  estate 
in  the  premises  as  will  justify  the  interference  of  this  court,  so  as 
to  give  a  preference  to  the  judgment  creditor. 

I  have  reached  this  conclusion  without  reference  to  the  situation 
of  the  bank,  who  are  purchasers  from  Pierson  after  the  judgment 
against  Outcalt,  and  before  the  sale.  It  is  admitted  that  their 
money  was  appropriated  for  the  improvement  of  the  property  be- 
fore the  sale.  They  took  it  to  secure  themselves,  and  are  bound 
to  pay  off  the  encumbrances.  They  offer  the  property  to  Disbo- 
rough on  payment  of  ttieir  demand.  Disborough  seeks  to  obtain 
it  on  payment  of  the  incumbrances  merely,  to  the  exclusion  of 
the  bank ;  and  if  successful,  the  result  would  be,  simply  to  trans- 
fer the  money  of  the  bank  into  his  own  pocket.  This  would 
certainly  be  hard  equity  against  the  bank,  who,  for  aught  we 
know,  had  no  actual  notice  of  the  claim  of  Disborough  at  the 
time  of  their  purchase. 

As  to  the  other  lot  of  forty  acres  embraced  in  the  deed,  the  facts 
appear  to  be  these.  In  1823,  Griffin  Taylor  contracted  to  sell  the 
lotto  Outcalt  for  four  hundred  dollars.  Half  of  it  was  paid  in 
notes,  and  the  deed  was  to  be  delivered  when  the  money  was  all 
paid.  In  1824,  Taylor  assigned  his  right  in  the  article1,  and  to 
the  money  due  on  it,  to  one  William  Gordon,  and  furnished  Gor- 
don with  a  deed  to  Outcalt,  to  be  delivered  when  Outcalt  should 
pay  the  balance  of  the  purchase  money.  The  deed  was  tender- 
ed, but  Outcalt  refused  to  pay.  Gordon  then  assigned  his  right 
in  the  article  to  Disborough.  The  property  in  the  possession  of 
Outcalt  was  afterwards  levied  on,  and  the  right  of  Outcalt  sold, 
and  purchased  by  Disborough. 

This  is  not  a  bill  for  a  specific  performance.  It  does  not  seek 
that.  Outcalt  shall  be  decreed  to  pay  the  two  hundred  dollars,  on 
tendering  the  deed  ;  but  goes  on  the  principle  that  the  rights  of 
Taylor  and  Outcalt  are  both  vested  in  the  complainant:  the  one 
by  the  assignment  from  Gordon,  and  the  other  by  the  judgment 
and  execution  or  sale ;  and  therefore  that  the  court  may  decree 


APRIL  TERM,  1831.  313 

Disborough  v.  Outcalt  et  al. 

Taylor  to  make  a  deed  to  Disborough,  and  Outcalt  to  release  all 
his  interest  in  the  property  purchased.  I  do  not  see  on  what  prin- 
ciple the  court  is  to  proceed  in  giving  the  relief  prayed  for.  The 
complainant  charges,  that  he  has  an  equitable  right  to  hold  and 
enjoy  the  lands,  either  by  virtue  of  the  purchase,  or  under  the 
assignment.  It  appears  to  me,  that  under  the  assignment  he 
might  probably  have  compelled  a  specific  performance  of  the  con- 
tract on  the  part  of  Outcalt ;  but  it  certainly  cannot  be  enforced 
in  this  suit.  What  right  of  Outcalt  did  he  purchase  under  the 
execution  ?  or  rather,  what  was  the  right  on  which  the  execution 
is  sought  to  be  made  a  lien  ?  The  right  to  compel  a  conveyance 
on  the  part  of  Outcalt,  on  paying  the  two  hundred  dollars  due. 
This  brings  us  back  to  the  same  principles  already  discussed,  and 
will  lead  to  the  same  results.  The  difficulty  was  attempted  to  be 
surmounted  by  the  complainant's  counsel,  by  showing  that  Dis- 
borough had  not  only  the  right  under  the  execution  and  levy,  but 
also  the  right  of  Taylor.  But  what  was  it  that  was  transferred 
to  Disborough  by  Gordon?  Not  the  legal  right  of  the  property. 
It  was  not  in  Taylor's  power  to  assign  that  to  Gordon,  nor  did  he 
attempt  to  assign  it ;  and,  of  course,  it  could  not  be  transferred 
from  Gordon  to  Disborough.  It  was  the  right  to  receive  the  two 
hundred  dollars  from  Outcalt,  and  to  compel  a  performance  of  the 
contract ;  and  it  is  not  perceived  by  the  court  how  the  possession 
of  this  right  can  aid  the  complainant  in  this  cruise. 

Upon  the  whole  case,  I  am  of  opinion  that  the  complainant  has 
failed  to  establish  any  equitable  ground  for  relief,  and  that  his  bill 
must  be  dismissed. 

CITEI>  in  Kelchum  v.  Johnson's  Exrs.,  3  Gr.  Ch.  377 ;  Woodruff  v.  Johnson,  4 
Hal.  Ch.  730. 


CASES    DECIDED 


IN  THE 


COURT   OF  CHANCERY 

OF  THE 

STATE    OF    NEW -JERSEY, 

JULY  TEEM,  1831. 


SARAH  C.  WALLINGTON  v.  SAMUEL  C.  TAYLOR. 


Thomas  Taylor  devised  to  his  son  Samuel,  a  farm,  &c.,  "to  him,  his  heirs  and. 
assigns,  provided  he  had  lawful  issue;  but  if  he  should  die  leaving  no  issue 
living,  then  the  said  property  to  be  equally  divided  between  his  three  sisters." 
These  terms,  "leaving  no  issue  living,"  are  now  taken  to  mean  a  failure  of 
issue  at  the  time  of  the  death  of  the  devisee,  and  not  an  indefinite  failure  of 
issue:  consequently,  the  estate  devised,  instead  of  being  an  estate  tail,  must 
be  taken  to  be  a  contingent  fee,  with  an  executory  devise  over. 

But  whether  it  be  an  estate  tail,  or  a  contingent  fee,  the  power  of  the  devisee 
over  it  is  precisely  the  same ;  he  has  no  power  to  commit  waste,  to  destroy 
the  inheritance. 

The  testator  also  bequeathed  to  his  daughter  Sarah,  five  thousand  dollars  "to  be 
paid  to  her  by  the  said  Samuel,  out  of  the  estate  given  to  him,  in  annual 
payments  of  five  hundred  dollars  a  year."  This  legacy  is  a  charge  on. the 
estate  of  the  devisee,  (in  the  devised  premises,)  not  upon  his  person  or  upon 
the  land. 

If,  therefore,  the  estate  of  the  devisee  should  cease,  before  the  legacy  is  paid,  the 
land  would  be  discharged. 

Although  the  devisee  is  not  personally  liable,  yet  the  nett  annual  profits  of  the 
estate,  if  any,  are  to  be  appropriated,  yearly,  to  the  payment  of  the  legacy. 

The  legatee  is  entitled  to  have  her  money ;  and  if  the  devisee  does  not  pay  it,  in 
exoneration  of  the  charge,  the  estate  must  satisfy  it  in  some  way.  The  lega« 
cy  is  absolute,  and  does  not  depend  on  the  annual  value  of  the  estate. 

The  devisee  is  liable,  personally,  to  account  for  the  nett  profits  which  have  come 
to  his  hands ;  and  must  be  considered  as  holding  them  in  trust,  and  responsi- 
ble over  to  the  legatee  who  is  beneficially  interested. 


On  the  23d  of  January,  1823,  Thomas  Taylor,  late  of  Bur- 
lington county,  made  and  published  his  last  will  and  testament, 

314 


JULY  TERM,  1831.  315 

"Wellington  v.  Taylor. 

in  writing,  executed  in  due  form  to  pass  real  estate.  He  gave 
by  it  to  his  son  Samuel  C.  Taylor,  the  defendant,  the  plantation 
on  which  he,  the  testator,  then  lived,  with  a  house  and  lot  adjoin- 
ing the  same,  and  all  the  buildings  and  improvements  thereon ; 
to  him,  his  heirs  and  assigns,  provided  he  had  lawful  issue  :  but 
if  he  should  die  leaving  no  issue  living,  then  the  said  property 
to  be  equally  divided  between  his  three  sisters.  The  testator  be- 
queathed to  his  daughter  Sarah  C.  Wallington,  five  thousand  dol- 
lars, to  be  paid  to  her  by  the  said  Samuel  C.  Taylor,  6ut  of  the 
estate  given  to  him,  to  be  paid  in  annual  payments  of  five  hun- 
dred dollars  a  year,  without  interest;  the  first  payment  to  com- 
mence in  one  year  after  testator's  decease. 

The  testator  died,  and  the  defendant  entered  into  possession  of 
the  property  so  devised  to  him  as  aforesaid. 

The  first  payment  of  five  hundred  dollars  became  due  on  the 
21st  of  August,  1829. 

The  bill  charges,  that  the  defendant  refuses  to  pay  the  first 
payment;  that  he  is  receiving  the  rents,  issues  and  profits,  refusing 
to  account  for  any  part  of  them  ;  and  is  committing  great  waste 
and  spoil  on  the  premises.  It  prays,  that  the  defendant  may  be 
decreed  to  pay  the  complainant  the  sum  due,  with  interest;  and 
in  default  thereof,  that  a  receiver  may  be  appointed ;  and  if  the 
rents  and  profits  will  not  satisfy  the  legacy  as  it  becomes  due,  that 
so  much  of  the  real  estate  charged  with  the  legacy  be  sold  to  satisfy 
the  same,  according  to  the  provisions  of  the  will. 

The  defendant  denies  the  commission  of  the  waste,  and  insists 
that  he  has  right  to  hold  the  property  without  impeachment  of 
waste;  and  that  he  has  a  right  to  cut  wood  and  timber  for  the 
payment  of  the  annual  legacy;  and  if  he  has  not,  he  is  willing 
and  desirous  that  the  premises  be  sold  for  the  purpose  of  paying 
the  legacy.  The  defendant  protests  against  any  personal  liability 
for  the  payment  of  the  claim ;  and  alleges  that  the  premises  are 
so  well  timbered  and  wooded,  that  a  sufficient  quantity  of  wood 
may  be  cut  yearly  to  pay  the  said  legacy  without  detriment  to  the 
farm,  and  without  committing  any  waste  or  injury  whatever  to 
the  inheritance. 

It  appeared  in  evidence  that  the  defendant  had  no  children. 


316  CASES  IN  CHANCERY. 

Wallington  v.  Taylor. 

G.  Wood,  for  the  complainant.  The  devise  is  to  8.  C.  Taylor  and 
his  heirs;  but  if  he  should  die  leaving  no  issue  living,  then  over. 
This  does  not  mean  an  indefinite  failure  of  issue,  but  a  definite 
failure  of  issue.  The  language  is  "leaving:" — When  leaving? 
It  must  mean,  at  the  time  of  his  death,  and  not  at  some  future 
indefinite  period. 

The  estate  devised  is  a  contingent  fee,  with  an  executory  devise 
over,  and  not  an  estate  tail.  In  3  Hals.  R.  6,  the  words  were, 
"  without  issue  alive."  This  had  reference  to  the  death  of  the 
devisee  for  life.  So  in  Porter  v.  Bradley,  3  T.  R.  146 ;  Wilkinson 
v.  South,  7  T.  R.  555  ;  Roe  v.  Jeffrey,  7  T.  R.  589. 

The  legacy  is  charged  upon  the  estate  devised  to  Samuel  Taylor, 
in  the  premises;  and  not  on  the  land  generally,  or  on  the  person 
of  the  devisee.  '  When  that  estate  ceases,  whether  his  estate  be  a 
fee  tail  or  a  contingent  fee  simple,  the  legacy  is  gone. 

The  legal  estate  is  vested  in  the  defendant.  The  beneficial 
interest,  by  this  charge,  is  vested  in  the  complainant,  pro  tanto, 
and  she  is  entitled  to  so  much  of  the  nett  proceeds  of  the  devised 
premises,  as  will  be  sufficient,  annually,  to  satisfy  her  legacy. 
The  complainant's  interest  is  of  a  primary,  that  of  the  defendant 
is  of  a  residuary  character:  2  Ves.  R.  547;  Ch.  Williamson's  Op. 
Wood  v.  Wood. 

The  legacy  is  a  trust  exclusively  under  the  cognizance  of  a 
court  of  equity:  18  John.  R.  428.  Samuel  C.  Taylor  receives 
the  rents  as  trustee.  They  should  be  appropriated  to  satisfy 
the  claim  of  the  legatee.  He  stands  in  the  situation  of  a  trustee 
refusing  to  account  for  the  trust  moneys,  and  ought  to  be  charged 
personally  with  the  profits  received :  1  Mad.  254;  2  Anst.  506;  1 
Aik.  382;  1  Paige,  282,8,  9. 

The  improper  appropriation  is  a  fraud  on  the  cestui  que  trust : 
1  Paige,  147.  He  ought  to  account  for  the  rents,  issues,  and 
profits,  and  be  restrained  from  committing  waste. 

The  tenant  of  the  contingent  fee  cannot  commit  waste  :  Eden  on 
Inj.  122.  Yet  if  he  were  tenant  in  tail  under  the  statute  de  donis, 
he  is,  under  our  statute,  only  a  tenant  for  life,  and  as  such  cannot 
commit  waste. 

The  only  difficulty  arises  from  the  defence  set  up  in  the  answer; 
that  the  defendant  is  not  bound  to  account  for  the  profits  received. 


JULY  TERM,  1831.  317 

Wallington  v.  Taylor. 

I  admit  that  he  is  entitled  to  an  equivalent  for  his  labor.  But  we 
are  entitled  to  have  the  nett  profits  applied  to  the  payment  of  the 
legacy,  until  that  is  satisfied,  principal  and  interest.  A  legacy 
charged  on  a  dry  reversion  does  not  carry  interest ;  but  where  the 
reversion  is  in  possession,  and  yielding  profits,  it  is  otherwise :  6 
John.  C.  R.  33. 

G.  D.  Wall,  for  the  defendant.  This  is  an  extraordinary  case. 
The  defendant  has  only  an  interest  for  life,  and  whether  his  estate 
be  an  estate  lail  or  a  contingent  fee,  is  not  important.  A  tenant  in 
tail  or  of  a  contingent  fee,  has  a  right  to  commit  waste,  but  not  to 
the  injury  of  the  right  of  third  persons. 

The  testator  has  given  the  legacy  of  five  thousand  dollars,  five 
hundred  of  which  is  payable  annually,  out  of  the  estate.  It  is 
not  charged  on  Samuel,  or  on  the  land  devised,  but  on  the  estate 
alone;  and  to  the  estate  the  complainant  must  look  for  her  legacy. 

It  is  said,  the  legatee  has  the  beneficial  interest  in  the  estate  ; 
that  her  interest  is  primary,  and  that  of  the  defendant  secondary": 
but  the  case  relied  on  from  Vernon's  jR.  does  not  support  the  prin- 
ciple. The  question  there  was,  as  to  the  abatement  of  the  specific 
legacy. 

The  complainant's  counsel  attempt  to  convert  the  defendant  into 
a  trustee,  and  the  complainant  into  a  cestui  que  trust.  Then  he 
would  be  a  mere  receiver.  He  does  not  stand  in  that  relation. 
There  is  no  dispute  about  the  value  of  the  property :  it  is  not  more 
than  three  hundred  dollars  per  annum,  out  of  which  he  is  called 
on  to  pay  five  hundred  dollars.  This  cannot  be. 

The  devisee  and  legatee  are  both  beneficially  interested.  The 
remedy  of  the  legatee  is  upon  the  estate.  The  court  may  order 
the  estate  to  be  sold,  if  they  think  proper,  to  raise  the  legacy. 
The  legatee  has  a  right  to  take  the  estate,  but  not  what  the  devisee 
has  made  out  of  it  while  in  his  hands.  They  have  given  the  de- 
fendant no  chance  to  make  anything  out  of  the  estate.  He  is  satis- 
fied he  can  make  nothing  out  of  the  land,  and  is  willing  that  his 
estate  in  it  should  be  sold  ;  or  he  is  willing  to  cut  timber  on  the 
land  for  the  payment  of  the  legacy,  under  the  direction  of  the 
court ;  but  is  not  liable  to  account  for  the  past  rents  and  profits 
received. 


318  CASES  IN  CHANCERY. 

Wallington  v.  Taylor. 

Wood,  in  reply.  This  is  not  a  case  where  the  legatee  can  be 
let  into  possession.  She  has  no  legal  interest  in  the  land.  The 
defendant  is  a  trustee  for  the  benefit  of  the  legatee,  he  having  the 
whole  legal  estate.  I  admit  he  is  not  personally  liable  for  the 
legacy,  otherwise  he  would  be  bound  to  pay  it  without  regard  to 
rents  or  profits.  But  he  is  a  trustee ;  the  profits  ought  to  be  ap- 
propriated annually  to  the  payment  of  the  legacy,  and  he  is  per- 
sonally liable  for  the  profits  received.  If  he  is  not  liable  for  the 
profits  received,  then  he  is  not  in  default  for  not  paying,  and  the 
legal  interest  cannot  be  sold  without  default.  The  testator  could 
not  have  intended  that  the  estate  should  be  sold  by  piecemeal  to 
satisfy  the  legacy. 

THE  CHANCELLOR.  There  is  no  difficulty,  as  I  think,  in  es- 
tablishing the  relative  rights  of  the  parties,  or  in  determining  that 
the  complainant  is  entitled  to  relief. 

1.  As  to  the  estate  of  the  defendant.  Under  the  old  cases,  and 
as  the  law  was  formerly  understoodj  I  presume  it  would  be  con- 
sidered an  estate  tail.  More  modern  decisions  have  varied  the 
rule,  and  the  current  of  authorities  is  now  the  other  way.  The 
terms  "leaving  no  issue  living,"  are  now  taken  to  mean  a  failure 
of  issue  at  the  time  of  the  death  of  the  devisee,  and  not  an  indefi- 
nite failure  of  issue  ;  and  consequently  the  estate,  instead  of  being 
an  estate  tail,  must  be  taken  to  be  a  contingent  fee  with  an  execu- 
tory devise  over. 

But  this  is  not  very  important  to  the  rights  of  the  parties;  for 
whether  it  be  the  one  or  the  other  kind  of  estate,  the  power  of  the 
devisee  over  it  is  precisely  the  same :  he  has  no  right  to  commit 
waste,  so  as  to  destroy  the  inheritance. 

"^2.  The  legacy  is  a  charge  upon  the  estate  of  the  defendant,  not 
upon  his  person  nor  upon  the  land.  If,  therefore,  the  estate  should 
cease  before  the  legacy  is  paid,  the  land  would  be  discharged  from 
all  liability  or  claim. 

3.  Although  the  devisee  is  not  personally  liable,  yet  the  nett 
annual  profits  of  the  estate,  if  any,  are  to  be  appropriated  yearly 
to  the  payment  of  the  legacy.  Such  was,  no  doubt,  the  inten- 
tion of  the  testato'',  and  such  is  the  reason  of  the  thing.  The 


JULY   TERM,  1831.  319 

Wallington  v.  Taylor. 

estate  is  charged  with  this  annual   payment,  and  the  profits  of 
the  estate  should  be  directed  to  satisfy  the  charge. 

4.  Whether   the  annual   profits   of  the  estate  will   equal   the 
charge,  is  not  material  to  the  complainant,  standing  simply  as  a 
legatee.     She  is  entitled  to  have  her  money ;  and  if  the  devisee 
does  not,  or  cannot  pay  it,  in  exoneration  of  the  charge,  the  estate 
must  satisfy  it  in  some  way.  '  The  legacy  is  absolute,  and  does  not 
depend  upon  the  annual  value  of  the  estate. 

5.  The  nett  profits  of  the  estate,  after  giving  to  the  devisee  a 
fair  and  proper  support  out  of  the  property,  being  liable  for  the 
payment  of  the  legacy,  if  they  have  come  into  the  hands  of  the 
defendant,  he  is  liable  personally  to  account  for  them.     He  must, 
be  considered  as  holding  them  in  trust,  and  responsible  over  in 
this  court  to  the  person  beneficially  interested. 

Such  I  take  to  be  the  situation  and  relative  rights  of  the  par- 
ties. 

There  is  some  difficulty  in  directing  the  mode  of  relief  to  which 
the  complainant  is  entitled.  To  sell  the  whole  estate,  might  be 
to  sacrifice  it,  to  the  injury  of  all  the  parties ;  and  besides,  the 
whole  of  the  legacy  will  not  b6  due  in  some  years,  and  the  party 
has  no  right  to  call  for  it  until  it  is  payable  according  to  the  terms 
of  the  bequest.  To  sell  a  part  of  the  estate  every  year,  might 
be  still  more  injurious.  If  it  be  true,  as  stated  by  the  defendant, 
that  there  is  such  an  abundance  of  wood  and^timber  on  the  pre- 
mises, as  to  admit  enough  to  be  cut  down  every  year  to  pay  the 
annual  charge,  and  that  without  any  injury  to  the  land,  that 
method  might  be  resorted  to  with  apparent  propriety. 

To  enable  the  court  to  come  to  a  just  conclusion  as  to  the  facts, 
and  to  direct  with  more  security  the  proper  course  to  be  pursued 
in  reference  to  the  whole  legacy,  I  shall  refer  it  to  a  master  to 
enquire, 

1.  As  to  the  amount  of  the  annual  nett  profits  that  have  come 
to  the  hands  or  use  of  the  defendant,  after   making  to  him   all 
just  allowances  for  a  fair  and  proper  support  out  of  the  premises, 
from  the  time  he  came  into  the  possession  ;  to  the  end  that  he  may 
be  personally  charged  with  the  same ;  to  be  applied,  pro  tanto,  to 
the  extinguishment  of  the  claim  upon  the  estate. 

2.  To  ascertain  and  report  the  quantity  and  amount  of  wood 


320  CASES  IN  CHANCERY. 

Rodman  v.  Zilley  et  al. 

and  timber  that  has  been  cut  on  the  property  by  the  devisee,  over 
and  above  what  was  necessary  for  the  use  of  the  farm  ;  and 
whether  the  same  still  remains  on  the  property  unsold,  or  has  been 
sold  for  the  benefit  of  the  defendant. 

3.  To  ascertain  and   make  report  of,  the  quantity,  kind,  and 
value  of  the  timber  and  wood  upon  the  said  premises,  and  how 
much,  as  to  quantity  and  amount,  may  be  sold  annually  without 
prejudice;  and, 

4.  To  inquire  and   report  whether,    in   case  it  should    become 
necessary  to  sell  any  part  of  the  premises  other  than   the  wood 
and  timber,  the  same  or  any  part  of  it  may  be  sold  in  parcels, 
and  in  what  way  most  advantageously ;  or  whether  the  estate  is 
BO  situated  as  to  render  it  expedient  to  sell  the  whole  together, 
and  what  would  be  the  probable  value  of  said  estate. 

These  facts  being  ascertained,  the  court  will  be  enabled  to  give 
effectual  relief  as  to  the  whole  case.  If,  in  the  mean  time,  any 
waste  should  be  attempted,  the  court  will  promptly  interfere. 

All  further  directions  are  reserved  until  the  coming  in  of  the 
report. 

CITED  in  Morehouse  v.  Cotheal,  2  Zab.  440. 


SAMUEL  RODMAN  v.  AMOS  ZILLEY,  DAVID  S.  ZILLEY,  AND  ELIZ- 
ABETH BLAKELEY. 


On  a  bill  by  the  vendor,  for  specific  performance  of  a  contract  for  the  sale  of 
land  at  auction ;  where  it  appears  that  the  vendee  was  induced  to  make  the 
purchase  by  the  fraudulent  contrivance  and  management  of  the  vendor,  he 
can  have  no  remedy  to  enforce  the  contract  in  a  court  of  equity ;  but  where 
the  charge  of  fraud  or  collusion  is  not  established  against  the  complainant, 
the  relief  he  seeks  cannot  be  rightfully  withheld  on  that  ground. 

So  the  vendee  being  intoxicated  at  the  time,  and  not  in  a  situation  to  judge  cor- 
rectly, or  act  with  prudence,  will  not  avail  him  to  avoid  the  contract,  unless 
he  can  show  that  it  was  procured  by  the  contrivance  of  the  vendor,  or  that  an 
unfair  or  improper  advantage  was  taken  of  his  situation. 

Courts  of  equity  seldom  interfere  to  set  aside  contracts  of  sale,  on  the  ground 
of  inadequacy  of  price  ;  they  leave  the  parties  to  their  legal  remedies.  But 
when  called  on  to  enforce  a  contract,  they  examine  into  the  consideration 
to  be  given,  its  fairness  and  equality,  and  all  the  circumstances  connected 


JULY  TERM,  1831.  321 

Kodrnan  v.  Zilley  et  al. 

with  it:  and  if  any  thing  manifestly  inequitable  appear  in  that  part  of  the 
transaction,  they  will  never  lend  their  power  to  carry  the  contract  into  exe- 
cution. 

There  can  be  no  objection  to  a  contract  made  "with  a  man  in  the  habit  of  buyii  g 
and  selling,  and  transacting  his  own  business,  because  he  was  illiterate,  u.i- 
less  he  has  been  grossly  deceived  or  fraudulently  imposed  on. 

The  rule  of  tbis  court  is,  that  time  may  be  dispensed  with,  if  not  of  the  essence 
of  the  contract.  In  this  case,  the  time  of  the  delivery  of  the  deed  was  not 
held  to  be  of  the  essence  of  the  contract. 

A  party  may  waive  his  technical  right  in  this  respect,  and  the  waiver  need  not 
be  direct,  or  in  writing,  but  may  be  inferred  from  circumstances. 

So  a  prior  incumbrance  existing  on  the  property,  and  known  to  the  purchaser, 
is  not  a  bar  to  a  specific  performance:  but  it  may  be  referred  to  a  master  to 
enquire  as  to  the  amount  of  the  incumbrance  and  state  of  the  title,  that  the 
court  may  judge  and  take  such  order  as  may  be  expedient. 

The  waiver  of  a  contract  for  the  sale  of  real  estate  may  be  by  parol,  but  it  should 
be  express,  and  of  such  a  character  as  to  leave  no  reasonable  doubt  as  to  the 
intentions  of  the  parties. 

Under  conditions  of  a  vendue  "for  the  sale  of  the  property  of  S.  R."  it  is  no  ob- 
jection to  the  execution  of  the  contract,  that  a  part  instead  of  the  whole  of  a 
lot  of  land  was  sold  ;  provided  it  was  made  known  what  part  was  to  be  sold 
at  the  time  it  was  set  up. 

The  bill  in  this  case  is  to  enforce  the  specific  performance  of  an 
agreement  for  the  purchase  and  sale  of  lands  ijj  the  county  of  Bur- 
lington. 

In  1826,  A.  Zilley  had  a  mortgage  and  execution  against  Rod- 
man, for  about  one  thousand  dollars.  The  mortgage  covered  fifty- 
five  acres  of  land  in  the  possession  of  Rodman.  The  execution 
was  levied  on  the  same  property,  and  was  in  the  hands  of  Wil- 
liam N.  Shinn,  the  sheriff  of  the  county  of  Burlington,  who  was 
about  to  sell  and  make  the  money  on  the  execution.  Matters 
being  thus  situated,  it  was  agreed,  in  order  to  avoid  the  exposure 
of  a  sheriff' s  sale,  that  the  property  should  be  sold  at  public  sale 
by  Rodman  himself,  the  defendant  in  the  execution,  and  that 
the  money  raised  by  the  sale  should  be  appropriated  to  the  dis- 
charge of  the  execution  in  the  sheriff's  hands.  The  arrangement 
was  made  between  the  parties  to  the  suit,  with  the  consent  of  the 
sheriff.  The  sale  took  place  on  the  4th  day  of  January,  1827;, 
and  thirty-five  acres  of  said  land,  being  set  up  and  publicly  e.x.- 


322  CASES  IN  CHANCERY. 

Rodman  v.  Zilley  et  al. 

posed  to  sale,  were  purchased  by  Amos  Zilley,  the  plaintiff  in 
the  execution,  for  thirty  dollars  seventy-five  cents  per  acre.  A 
memorandum  in  writing,  acknowledging  the  purchase,  was  im- 
mediately executed  by  Ziliey.  According  to  the  conditions  of  the 
sale,  the  deed  was  to  be  executed  on  or  before  the  13th  day  of 
January,  at  which  time  one  third  part  of  the  purchase  money 
was  to  be  paid,  and  for  the  residue  approved  notes  were  to  be  given, 
payable  at  three  and  six  months.  The  complainant,  alleging  the 
tender  of  a  deed  to  Zilley,  the  purchaser,  complains  that  he  refuses 
to  comply  with  his  engagement,  and  seeks  the  aid  of  this  court  to 
enforce  the  contract. 

The  defendant,  Zilley,  admits  the  material  facts,  as  stated  by  the 
complainant;  but  alleges,  as  a  justification  for  his  refusal  to  com- 
ply with  the  conditions  of  sale  and  complete  the  purchase,  that  he 
was  induced  to  make  the  bid  and  sign  the  conditions  by  the  encour- 
agement and  persuasion  of  the  complainant,  and  the  assurance  that 
he  need  not  keep  the  property  unless  he  chose ;  and  that  at  the 
time  he  was  considerably  excited  and  intoxicated,  and  not  in  a  con- 
dition to  judge  correctly;  and  that  he  is  now  fully  aware  that  the 
property  is  not  worth  the  money  he  bid  for  it.  He  denies  also  that 
the  complainant  tendered  him  a  deed  on  the  13th  day  of  January, 
or  at  any  other  time,  in  a  lawful  and  proper  manner,  and  that  he 
has  done  any  thing  to  waive  a  strict  and  legal  compliance  with  the 
conditions  on  the  part  of  the  complainant.  He  further  sets  up, 
that  the  premises  are  subject  to  a  mortgage  made  to  James  Hunter 
Sterling,  which  is  prior  to  the  defendant's  mortgage. 

Issue  was  joined,  and  witnesses  were  examined.  The  cause  was 
heard  upon  the  bill,  answer  and  proofs,  the  substance  of  which 
appears  in  the  opinion  of  the  court.  The  case  was  argued  by 

Ch.  Kinsey,  for  the  complainant; 
G.  D.  Wall,  for  the  defendants. 

THE  CHANCELLOR.  Let  us  examine  these  several  matters, 
and  see  how  far  they  are  supported  by  the  evidence,  so  as  to  be 
available  to  the  defendant. 

1.'  Was  the  defendant    induced   to  make  this  purchase  by  the 


JULY  TERM,  1831.  323 

Rodman  v.  Zilley  et  al. 

contrivance  and  management  of  the  complainant?  for  if  this  be 
the  case,  the  complainant  can  have  no  remedy  in  a  court  of 
equity. 

It  appears  somewhat  singular  that  Zilley,  having  an  execution 
on  all  the  property  of  Rodman,  which  was  an  ample  security  for 
his  money,  should  consent  to  purchase  thirty-five  acres  of  land, 
being  only  part  of  the  real  estate,  for  a  full  price,  when  it  is  evi- 
dent he  was  not  in  want  of  property  of  that  kind,  and  that  it  must 
prove  to  him  rather  an  incumbrance  than  a  benefit.  But,  however 
singular  it  may  be,  I  do  not  find  any  sufficient  evidence  to  make 
out  against  the  complainant  the  charge  of  fraudulent  procurement. 
It  appears  Zilley  attended  the  sale,  and  probably  at  the  request  of 
Rodman.  But  if  the  property  was  to  be  sold  by  Rodman  himself, 
when  it  was  known  that  Zilley  had  an  execution  upon  it  for  a  con- 
siderable amount,  it  was  certainly  proper  that  Zilley  should  be 
present,  to  show  that  he  approved  of  the  proceedings.  There  is 
some  evidence,  not  very  satisfactory  however,  going  to  show  that 
he  was  requested  not  only  to  attend,  but  to  bid  at  the  sale ;  but  it 
was  for  the  purpose  of  making  the  property  bring  a  fair  price,  not 
to  palm  it  upon  him  at  an  exorbitant  rate,  and  thus  take  advan- 
tage improperly  of  an  act  of  kindness. 

It  was  alleged  that  some  of  the  bidders  at  the  sale,  especially 
Philip  Richardson,  were  induced  to  attend  and  bid  at  the  instance 
of  the  complainant,  and  with  a  view  of  entrapping  the  defendant. 
Richardson,  on  hfs  examination,  expressly  denies  that  Rodman 
used  any  persuasion  or  improper  means  to  procure  his  bid.  There 
is  a  discrepancy  in  the  testimony  of  this  witness  upon  another  point, 
that  renders  it  proper  to  receive  his  evidence  with  gome  caution. 
Yet  as  there  is  no  direct  testimony  to  prove  any  collusion  between 
Rodman  and  any  of  the  bidders  at  the  sale,  the  evidence  may 
be  of  some  use  to  repel  any  presumption  that  may  arise  from  cir- 
cumstances. I  do  not  find  this  allegation  supported  in  point  of 
fact. 

After  a  careful  examination  of  the  evidence  on  both  sides,  I 
have  not  been  able  to  satisfy  myself  that  the  charge  of  fraud  or 
collusion  is  established  against  the  complainant,  and  therefore  the 
?emedy  sought  by  him  cannot  rightfully  be  withheld  from  him  on 
that  ground. 


324  CASES  IN  CHANCERY. 

Eodman  v.  Zilley  et  al. 

2.  A  second  ground  o.f  defence  is,  that  the  defendant  was  in- 
toxicated, and  not  in  a  situation  to  judge  correctly  or  act  with  pru- 
dence. 

The  most  important  evidence  in  favor  of  this  allegation  is  the 
statement  of  Rodman  himself,  made  to  Wills,  when  he  went  to 
get  him  to  run  out  the  land.  He  then  told  Wills  that  Zilley  was 
a  "  little  groggy  at  the  vendue,"  and  bid  quite  smartly.  On  the 
other  hand,  Rogers,  the  crier,  savs,  that  Zilley  was  not  disordered 
in  his  mind  or  rendered  incompetent  by  the  use  of  liquor. 
Sheriff  Shinn  says,  he  considered  Zilley  to  be  sober  at  the  time 
of  the  sale.  Richardson  says,  he  did  not  discover  him  to  be 
drunk.  Daniel  Williams  testifies,  that  he  saw  Zilley  after  the 
sale,  and  on  the  same  day,  and  that  he  appeared  to  be  perfectly 
sober;  and  further,  that  he  never  saw  him  drunk.  James  H. 
Sterling,  who  was  present  when  Zilley  signed  the  conditions  of 
sale,  says,  he  has  no  recollection  of  seeing  him  intoxicated  at 
that  time.  And  it  is  to  be  remarked  also,  that  Zilley,  in  all  the 
conversations  had  with  different  persons  after  the  sale,  and  which 
are  detailed  in  the  evidence,  makes  no  mention  of  the  circum- 
stance. 

But  if  the  fact  were  made  out,  it  could  not  avail  the  defendant, 
unless  he  can  show  that  it  was  procured  by  the  contrivance  of 
the  complainant,  or  that  an  unfair  and  improper  advantage  was 
taken  of  his  situation.  As  to  the  first,  there  is  no  pretence  for  it 
whatever;  and  as  to  the  last,  it  is  difficult  to  arrive  at  such  a  con- 
clusion, against  the  testimony  of  respectable  witnesses,  that  the  sale 
was  a  fair  sale,  and  the  property  worth  the  amount  bid  for  it,  or 
very  nearly  so ;  and  when  we  see,  that  shortly  after  the  sale,  the 
defendant  was  offered  within  a  trifle  of  the  amount  he  gave  for  it, 
and  refused  the  offer.  The  defence  can  be  of  no  avail  to  the  de- 
fendant. 

3.  Another   ground   is,    that   the  property   is   not   worth   the 
money. 

Courts  of  equity  seldom  interfere  to  set  aside  sales  and  con- 
tracts, on  the  ground  of  inadequacy  of  price.  They  leave  the 
parties  to  their  legal  remedies.  But  when  they  are  called  on  for 
extraordinary  aid  to  enforce  a  contract,  they  take  the  liberty  to 
examine  into  the  consideration  to  be  given,  its  fairness  and  equa- 


JULY  TERM,  1831.  325 

Hodman  v.  Zilley  et  al. 

lity,  and  all  the  circumstances  connected  with  it.  And  if  any 
thing  manifestly  inequitable  appears  in  that  part  of  the  transaction, 
they,  will  never  lend  their  power  to  carry  the  contract  into  execu- 
tion. See  the  case  of  Seymour  v.  Delancy,  6  John.  C.  222,  in  which 
all  the  authorities  are  reviewed. 

What  are  the  facts  in  this  case,  as  to  the  value  of  the  proper- 
ty? The  defendant  bid  for  it  thirty  dollars  seventy-five  cents. 
There  were  several  persons  who  bid  for  the  property.  Cogswell* 
bid,  as  he* says,  three  or  four  times;  his  last  bid  was  thirty  dol- 
lars twenty-five  cents.  Richardson  bid  thirty  dollars  fifty  cents, 
but  from  his  evidence  I  think  it  may  well  be  doubted  whether  he 
intended  to  be  bound  by  the  bid.  The  defendant,  then,  agreed 
to  give  fifty  cents  more  on  the  acre  than  Cogswell.  There  is  no 
evidence  to  show  that  Cogswell  was  unable  to  pay,  or  that  his 
bid  was  a  sham  bid  in  any  sense  of  the  word.  On  the  contrary, 
he  says  that  his  bid  was  a  real  bid,  made  in  earnest;  and  in  the 
absence  of  proof  to  the  contrary,  it  must  be  taken  to  be  so,  and 
that  he  considered  the  land  worth  the  amount  of  his  bid.  Inde-' 
pendently  of  this,  Cogswell  says  in  his  evidence,  that  he  consid- 
ered the  property  cheap  at  thirty  dollars  seventy-five  cents  per 
acre,  at  the  time  of  sale,  and  also  at  the  time  of  his  examination. 
Richardson  says  he  considered  the  land  to  be  worth  thirty  dollars 
per  acre.  David  Williams  testifies,  that  Zilley,  some  little  time 
after  the  sale,  wanted  him  to  buy  the  property,  and  offered  to  sell 
it  to  him,  stating  that  the  deed  was  in  Wills's  hands,  and  that  he 
was  fully  authorized  to  sell.  He  came  a  second  time,  and  appear- 
ed very  anxious.  Witness  told  him  he  did  not  want  the  property 
at  any  price,  but  nevertheless  offered  him  twenty-seven  or  twenty- 
eight  dollars  per  acre,  he  cannot  say  which. 

It  is  evident  from  these  facts,  that  the  sum  agreed  by  the  de- 
fendant to  be  given  for  the  property,  was  not  far  from  the  real 
value.  Another  circumstance  on  this  part  of  the  case  has  had 
great  influence  on  my  mind ;  and  that  is,  that  although  the  de- 
fendant has  made  loud  complaints  in  court  as  to  the  extravagance 
of  the  price,  he  has  not  called  a  single  witness  to  testify  to  the  value 
of  the  land.  Surely  it  would  have  been  very  easy  to  prove  the 
charge,  if  it  were  true. 


326  CASES  IN  CHANCERY. 

Hodman  v.  Zilley  et  al. 

4.  Again  it  is  said,  the  defendant  was  illiterate,  and  not  capable 
of  taking  care  of  his  rights. 

He  certainly  was  an  illiterate  man,  but  he  was  in  the  habit  of 
transacting  his  own  business;  of  buying  and  selling,  not  only 
personal,  but  real  property.  He  is  represented  to  have  been  a 
close,  contracted  man  in  his  dealings,  and  a  tight  man  to  make  a 
bargain  with.  There  can  be  no  objection  to  a  contract  made  with 
such  a  man,  unless  he  has  been  grossly  deceived  or  fraudulently 
imposed  on,  which  does  not  appear  to  have  been  the  case*. 

5.  But  it  is  objected  that  the  deed  was  not  tendered  in  time,  and 
it  is  insisted  that,  under  the  circumstances  of  the  case,  the  defend- 
ant is  at  liberty  to  avail  himself  of  every  defence,  and  hold  the 
opposite  party  to  strict  rule. 

There  is  no  foundation  for  this  objection.  According  to  the 
conditions  of  sale,  the  deed  was  to  be  made  by  the  13th  of  Jan- 
uary, when  one  third  of  the  purchase  money  was  to  be  paid,  and 
the  residue  secured.  Now  it  is  in  evidence,  that  the  deed  was 
actually  made  and  executed,  at  the  house  of  Wills,  on  the  llth 
of  January,  and  that  it  was  done  in  the  presence  of  Zilley.  The 
situation  of  the  parties  was  such  as  to  render  a  literal  compliance 
with  the  conditions  altogether  unnecessary,  if  not  impossible. 
Zilley  was  the  purchaser,  and  he  was  also  the  creditor.  There 
was  no  necessity  for  his  paying  one  third  of  the  purchase  money 
to  Rodman,  or  giving  his  notes  for  the  balance.  It  appears  that 
the  deed  was  left  in  the  hands  of  Wills,  and  the  purchase  money 
was  to  be  settled  on  the  execution.  Sheriff  Shinn  says,  he  met 
Rodman  and  Zilley  afterwards  on  the  road,  and  spoke  to  them 
about  this  business.  They  told  him  they  were  going  to  Mount 
Holly  to  settle  it;  and  Rodman  said,  in  the  presence  of  Zilley  at 
the  same  time,  that  he  would  leave  the  sheriff's  fees  in  the  hands 
of  Mr.  Neale,  who  was  the  attorney.  It  further  appears,  that 
Zilley,  after  the  execution  of  the  deed,  considered  the  deed  as 
his,  and  also  the  property,  and  spoke  of  them  as  such.  Shortly 
after  the  execution  of  the  deed  he  went  to  David  Williams,  as 
before  stated,  to  sell  him  the  land.  Williams  asked  him  if  he 
had  got  the  deed  executed  :  he  said  he  had,  and  that  it  was  left  in 
Wills's  hands,  and  that  he,  Zilley,  had  full  power  to  sell  the  pro- 
perty. He  afterwards  told  Williams  that  he  did  not  get  the  deed 


JULY  TERM,  1831.  327 

Rodman  v.  Zilley  et  al. 

from  Wills  because  he  was  not  able  to  pay  for  the  execution  of 
it,  and  that  Wills  intended  to  keep  it  until  he  got  his  fees.  Rich- 
ardson says,  that  some  weeks  after  the  sale,  (and  after  the  time 
when  the  deed  should  have  been  tendered,)  Zilley  came  to  his 
house  to  see  if  he  could  not  sell  him  the  property,  as  he  had  bid 
for  it  at  the  sale.  Witness  declined  taking  it.  Zilley  then  said 
he  was  going  to  the  factory,  or  Griffith's  mills,  to  sell  it  to  some 
man  there;  and  if  he  did  not  sell  it  to  him,  he  should  get  rails 
and  fence"it,  and  live  on  it  himself.  He  also  told  Williams,  that 
if  he  could  not  get  the  price  he  had  given  for  the  land,  he  meant 
to  fence  it,  and  build  upon  it,  and  live  there  himself.  The  deed 
was  tendered  some  time  in  January,  say  a  fortnight  after  the 
time  mentioned  in  the  article.  It  was  tendered  by  Mr.  Neale,  as 
counsel  for  Rodman,  after  it  was  supposed  that  some  difficulty 
might  be  made  about  completing  the  contract.  Even  then,  Zilley 
did  not  object  to  the  deed  ;  expressed  no  dissatisfaction  that  it 
was  not  tendered  in  time.  On  the  contrary,  he  told  Mr.  Neale, 
he  was  willing  to  take  the  property,  but  was  not  prepared  to  do 
so  at  that  time.  He  promised  to  go,  on  the  following  Tuesday, 
to  the  office  of  Daniel  Wills,  and  receive  the  deed,  and  settle  the 
whole  matter.  This  was  agreed  to  by  both  parties. 

In  this  case,  the  time  of  the  performance,  was  not  of  the  es- 
sence of  the  contract;  and  the  rule  of  this  court  is,  that  in  de- 
creeing the  specific  performance  of  an  agreement,  time  may  be 
dispensed  with,  if  not  of  the  essence  of  the  contract:  7  Ves.jr. 
273;  4  Bro.  C.  C.  329;  12  Ves.  326;  5  Cranch,  262;  and  the 
case  of  Hepburn  and  Dundas  v.  Dunlap  &  Co.,  1  Wfteat, 
204,  in  notis.  The  court,  then,  may  dispense  with  the  time, 
and  it  will  do  it  to  promote  the  ends  of  justice.  But  independently 
of  this,  the  whole  evidence  shows  a  waiver  of  the  formality  of  a 
tender  on  the  part  of  Zilley,  and  he  cannot  now  resort  to  it  for 
the  purpose  of  defeating  the  plaintiff's  claim.  There  can  be  no 
doubt  that  a  party  may  waive  his  technical  right  in  this  respect ; 
and  I  think  there  can  be  as  little  doubt  that  such  waiver  was 
actually  made.  It  need  not  be  direct,  or  in  writing;  but  may  be 
justly  inferred  from  circumstances  that  would  not  have  taken 
place  without  it. 

6.  Another  objection  is,  that  there  is  a  prior  mortgage  on  the 


328  CASES  IN  CHANCERY. 

Rodman  v.  Zilley  et  ah 

properly,  belonging  to  J.  H.  Sterling.  This  point  was  not  press- 
ed at  the  argument.  There  is  no  evidence  of  the  amount  of  the 
mortgage.  It  was  stated  to  be  very  small,  and  the  statement  not 
denied  :  and  it  is  proved  that  the  defendant  knew  of  it,  and  knew 
that  it  was  prior  to  his  mortgage  and  judgment.  If  desired,  it 
may  be  referred  to  a  master  to  make  the  necessary  inquiry,  as  to 
the  amount  of  the  incumbrance,  and  state  of  the  title,  so  as  the 
court  may  judge  of  them  and  take  such  order  in  relation  to  them 
as  may  be  deemed  expedient. 

7.  There  is  one  matter  of  defence,  which  was  not  set  up  in  the 
answer,  but  strenuously  urged  at  the  hearing,  viz.  that  the  con- 
tract was  waived. 

The  testimony  of  Samuel  J.  Read  was  relied  on  to  show  a 
parol  waiver.  I  think  it  fails  to  do  so.  Read  was  the  counsel 
of  Zilley  in  the  judgment  and  execution.  Rodman  and  Zilley 
were  at  Mount  Holly,  and  went  to  Read  for  the  purpose  of  ma- 
king a  settlement,  as  be  supposed ;  probably  it  was  the  time  that 
Shinn  saw  them,  when  on  their  way  to  Mount  Holly  to  settle  the 
business,  as  they  stated.  In  the  conversation  which  took  place, 
Read  observed  that  he  thought  Rodman  had  done  wrong,  and 
that  it  was  a  shame  to  take  advantage  of  such  a  poor,  ignorant 
man  as  Zilley.  He  further  observed  to  Rodman,  that  if  ''Rich- 
ardson was  a  real  bidder,  Amos  Zilley  had-  better  pay  the  addi- 
tional twenty-five  cents  per  acre,  and  let  Richardson  have  the 
land;  which  Zilley  agreed  to  do.  Rodman  said,  if  Zilley  would 
give  up  the  land,  he  would  not  ask  him  to  lose  any  thing ;  which 
Zilfey  agreed  to  do.  Rodman  then  said,  he  would  go  right  away 
and  let  Richardson  have  it."  If  I  understand  the  conversation, 
the  meaning  of  Rodman  was  not  to  release  Zilley  so  as  to  lose 
the  sale  of  the  property,  but  to  lose  the  extra  bid  of  Zilley,  so 
that  Richardson  might  take  the  property  at  his  bid.  He  was 
willing  to  lose  the  twenty-five  cents  on  the  acre,  if  Zilley  would 
agree  that  Richardson  should  take  it;  and  this  being  agreed  on, 
Rodman  went  immediately  to  see  if  Richardson  would  take  it, 
at  his  bid.  But  Richardson  did  not  take  it,  and  thus  the  matter 
ended.  The  waiver  of  a  contract  may  be  by  parol,  but  it  should 
be  express,  and  of  such  a  character  as  to  leave  no  reasonable 
doubt  as  to  the  intention  of  the  parties. 


JULY  TERM,  1831.  329 

Kodman  v.  Zilley  et  al. 

As  to  the  waiver  in  writing  set  up  by  the  defendant,  the  facts 
are  these.  There  was  due  from  Zilley  to  Elizabeth  Blakely, 
one  of  the  defendants,  the  sura  of  two  hundred  dollars.  To  se- 
cure this,  Zilley  had  assigned  to  Blakely  the  judgment  against 
Kodman.  Having  now  become  the  purchaser  of  a  part  of  Rod- 
man's property,  the  consideration  for  which  was  to  extinguish 
the  judgment,  he  was  desirous  of  procuring  the  two  hundred 
dollars  to  pay  off  Blakely.  When  he  offered  to  sell  to  Williams, 
he  said  he  wanted  to  make  up  two  hundred  dollars,  "  on  account 
of  some  writings  in  somebody's  hands."  On  the  13th  February, 
1827,  about  five  weeks  after  the  sale,  Rodman  entered  into  a 
written  agreement,  whereby  he  undertook  to  let  Zilley  have  money 
enough  to  pay  off  this  claim  to  Blakely,  and  Zilley  agreed  to  let 
Rodman  have  a  mortgage  on  the  thirty- five  acres  which  he,  Zil- 
ley, had  purchased. 

So  far  from  being  a  waiver,  this  appears  to  me  to  be  an  ex- 
press recognition  of  the  contract  by  both  parties.  This  instru- 
ment is  under  seal,  and  executed  in  the  presence  of  two  wit- 
nesses, and  cannot  be  mistaken.  If  it  had  been  set  up  as  evi- 
dence of  fraud  on  the  part  of  the  complainant,  there  might  have 
been  some  weight  in  the  argument;  but  it  certainly  cannot  prove  a 
waiver. 

8.  But  lastly,  the  defendant  says  the  contract  is  defective,  and 
cannot  be  enforced :  that  the  articles  purported  to  be  articles  for 
the  sale  of  the  whole  property,  whereas  only  thirty-five  acres 
were  sold.  The  article  commences  as  follows  :  "  Conditions  of 
the  vendue,  the  property  of  Samuel  Rodman,  held  this  4th  day 
of  January,  1827.  The  highest  bidder  to  be  the  purchaser," 
&c.  It  does  not  state  whether  it  was  real  or  personal  property 
that  was  about  to  be  sold,  or  whether  it  was  the  whole  or  only  a 
part;  but  the  property  to  be  sold  was  the  property  of  Samuel 
Rodman.  It  is  clear,  however,  that  it  was  land  only  that  was 
sold,  and  that  only  thirty-five  acres  were  set  up ;  and  there  is  no 
pretence  in  the  evidence  for  even  a  supposition,  that  Zilley  did  not 
know  what  he  was  buying.  No  complaint  of  this  kind  is  made  at 
the  time  of  the  sale,  or  at  the  time  of  the  survey  of  the  land,  or  at 
any  other  time,  so  far  as  the  facts  are  exhibited. 


330  CASES  IN  CHANCERY. 

Eodman  v.  Zilley  et  al. 

It  is  not  necessary  to  go  into  further  details.  The  conclusion 
of  my  mind  is,  that  the  complainant  is  entitled  to  the  relief  pray- 
ed for.  I  have  endeavored  to  examine  this  case  with  care  and 
attention  ;  and  I  was  induced  to  do  it  the  rather,  because  the  re- 
sult to  which  I  have  arrived  is  variant  from  my  first  impressions. 
There  are  difficulties  in  it,  I  admit^  and  there  may  be  some  dis- 
advantage to  the  defendant  in  decreeing  a  specific  performance. 
But  this  is  to  be  expected  in  a  greater  or  less  degree  in  every  case 
of  this  description.  Very  few  defendants  would  be  brought  into 
this  court  with  a  view  to  compel  a  specific  performance  of  con- 
tracts, if  it  were  not  that  they  supposed  such  performance  would 
be  in  some  way  disadvantageous.  If  I  could  have  found  a  safe 
resting  place  for  the  belief  that  this  was  a  sham  auction,  and 
that  an  actual  imposition  was  practiced  on  Zilley,  who  was  a 
man  of  rather  inferior  intellect,  I  should  not  have  hesitated  a 
moment  in  denying  the  relief  sought.  But  seeing,  from  the  evi- 
dence, that  he  was  a  man  in  the  habit  of  dealing  for  himself; 
that  he  consented  to  the  sale  of  the  property  in  this  way  to  satisfy 
the  execution  ;  that  the  sale  was  ac  open  sale,  and  in  the  presence 
of  very  respectable  persons,  who  testify  that  it  was  a  perfectly  fair 
one ;  that  he  signed  the  agreement  on  the  back  of  the  articles, 
and  expressed -himself  satisfied;  that  he  afterwards  repeatedly 
spoke  of  the  purchase  without  any  reservation,  or  any  charge  of 
unfairness,  except  perhaps  in  one  instance.  And  seeing  also,  that 
as  much  as  a  week  after  the  sale,  when  he  had  had  time  for  re- 
flection and  advice,  if  necessary,  he  took  the  surveyor  down  to 
the  land,  assisted  in  running  it  out,  was  present  at  the  execu- 
tion of  the  deed,  made  no  kind  of  objections  to  any  part  of  the 
proceedings,  but  promised  to  settle  the  matter  according  to  the 
contract;  and  seeing,  too,  that  he  considered  and  represented  the 
property  as  his  own,  and  the  deed  as  made  and  executed  to  him ; 
that  he  endeavored  to  sell  the  property,  and  dealt  with  it  as 
owner  ;  and  lastly,  not  being  satisfied  that  the  contract  is  uncon- 
sciencious  or  unjust,  or  that  the  enforcement  of  it  will  be  contrary 
to  what  is  termed  the  morality  of  the  court,  I  feel  constrained  to 
decree  for  the  complainant. 

The  assignment  of  the  judgment   to   Blakely,  or  the   general 


JULY  TERM,  1831.  331 

Pelletreau  v.  Rathbone. 

assignment  to  Daniel  S.  Zilley,  cannot  alter  the  principle  of  the 
case.  The  right  of  Blakely  will  be  protected  by  the  court ;  and 
the  assignee,  taking  only  the  rights  of  Zilley,  cannot  be  injured. 

CITED  in  Miller  v.  Chetwood,  1  Gr.  Ch.  208  ;  Ely  v.  Perrine,  Id.  402. 


JOHN  PELLETREAU,  EXECUTOR  OF  MEDCEF  EDEN,  DECEASED, 
v.  JOHN  RATHBONE. 


Probate  of  a  will  granted  in  one  state,  cannot  be  used  in  the  courts  of  an- 
other. 

To  enable  an  executor  to  maintain  a  suit  in  this  court,  it  is  necessary  that  the 
fact  of  the  probate  of  the  will  should  be  stated  in  the  bill. 

When  that  is  done,  and  no  objection  raised  by  the  pleadings,  a  probate  taken  out 
at  any  time  before  the  hearing  is  sufficient. 

Alleging  in  the  bill  that  the  complainant  "hath  taken  upon  himself  the  burthen 
of  executing  the  trusts  and  duties  required  of  him  by  the  will,  and  become 
duly  qualified  as  executor,"  is  not  sufficient  to  show  his  right  to  sue  in  the 
capacity  of  executor. 

Stating  in  the  bill,  that  the  will  has  been  duly  proved  in  the  state  of  New-Jersey, 
might  be  sufficient,  without  specifying  whether  such  proof  was  in  either  of 
the  orphan's  courts  or  before  the  ordinary. 

An  original  bill  was  filed  by  Rachel  Eden,  as  executrix,  and  also  a  devisee  in 
trust,  under  the  will  of  Medcef  Eden,  deceased,  which  the  defendant  an- 
swered. Upon  the  death  of  the  complainant,  a  bifl  of  revivor  and  supple- 
ment was  filed  by  J.  Pelletreau,  stating  himself  to  be  executor  and  devisee 
in  trust  under  the  will  of  the  said  Medcef  Eden,  and  also  administrator  of 
the  said  Rachel  Eden,  deceased :  which  was  demurred  to  for  multifarious- 
ness.  But  the  bill  of  revivor  corresponding  with  the  original  bill,  and 
bringing  before  the  court  the  persons  representing  the  parties  to  that  bill, 
and  it  not  appearing  that  the  complainant  relied  on  the  supplemental  mat- 
ter, or  any  claim  he  might  have  as  devisee  in  trust,  it  was  held  well. 


In  this  case  a  bill  was  filed  by  Rachel  Eden,  as  one  of  the 
executors  of  the  last  will  and  testament  of  Medcef  Eden,  de- 
ceased, and  also  a  devisee  in  trust  under  the  said  will,  against 
the  present  defendant,  for  an  account  and  payment  of  certain 
rents  and  profits  devised  by  the  said  will.  To  this  bill  the  de- 
fendant put  in  his  answer;  after  which  the  complainant  died. 
Upon  her  death  the  present  bill  of  revivor  and  supplement  was 
filed  by  J.  Pelletreau,  the  complainant,  stating  himself  to  be 


332  CASES  IN  CHANCERY. 

Pelletreau  v.  Kathbone. 

executor  and  devisee  in  trust  under  the  will  of  the  said  Medcef 
Eden,  deceased,  in  the  bill  of  the  said  Rachel  Eden  set  forth,  and 
also  administrator  of  the  said  Rachel  Eden,  deceased ;  and  alleg- 
ing, that  in  pursuance  of  the  said  will  of  the  said  Medcef  Eden,  de- 
ceased, he  had  taken  upon  himself  the  burthen  of  executing  the 
trusts  and  duties  required  of  him  by  the  said  will,  and  became 
duly  qualified  as  executor  to  the  said  will.  The  bill  contained  no 
farther  allegation  of  the  probate  of  the  will,  nor  any  prayer  for  re- 
lief upon  any  claim  the  defendant  might  have  as  a  devisee  in  trust 
under  the  said  will. 

To  this  bill  the  defendant  demurred,  and  to  sustain  the  demur- 
rer relied  on  the  following  grounds  : — 

1.  That  the  complainant,  in  his  bill,  had  not  stated  or  shown 
that  the  will  had  beeii  duly  proved  by  him  in  the  state  of  New- 
Jersey  to  authorize  him  in  his  character  as  executor  to  maintain  a 
suit  in  this  court;  and, 

2.  That    the   bill   was   multifarious,   the   complainant   having 
united  in  the  same  bill  three  claims,  in  different  rights  and  capa- 
cities, viz.    1.  As  executor  of  Medcef  Eden,  deceased;    2.  As  a 
devisee  in  trust  under  the  will  of  the  said  Medcef  Eden,  deceased  ; 
and,  3.  As  administrator  of  Rachel  Eden,  deceased.     The  demur- 
rer was  argued  by 

E.  Van  Arsdale,  sen.  and  S.  L.  Southard,  for  the  defendant ; 
G.  Wood,  for  the  complainant. 

Cases  cited  :— 4  Mas.  R.  32,  435,  461 ;  12  Wheat.  R.  169  ;  3 
Mas.  R.  472;  Miff.  P.  126  ;  2  Eq.  G.  Ab.  4,  5 ;  1  John.  C.  R. 
85  ;  4  John.  C.  R.  199  ;  2  Anst.  R.  469  ;  Coop.  E.  R.  30 ;  1  Chit. 
P.  200 ;  Miff.  P.  53,  55,  s.  4 ;  ib.  63 ;  1  Dick.  R.  283  ;  2  Mad. 
C.  532 ;.l  P.  Wms.  R.  753;  Toll.  Ex.  46  ;  1  P.  Wms.  R.  752, 
768  ;  2  Atk.  R.  120. 

THE  CHANCELLOR.  The  first  ground  of  demurrer  in  this 
case  is,  that  the  complainant  has  not  by  his  bill  alleged  or  set  forth 
that  he  has  duly  proved  the  will  of  the  said  Medcef  Eden,  nor 
that  he  has  duly  qualified  as  executor  to  the  said  will  in  the  state 
of  New- Jersey. 


JULY  TERM,  1831.  333 


Pelletreau  v.  Kathbone. 


The  original  bill  was  filed  by  Rachel  Eden,  who  alleges  her- 
self to  be  one  of  the  executors  of  the  will  of  Medcef  Eden,  de- 
ceased, late  of  the  city  of  New  York.  She  died,  and  upon  her 
death  the  present  bill  to  revive  was  filed  by  John  Pelletreau,  also 
of  the  city  of  New  York,  styling  himself  "  executor  and  devisee 
in  trust  of  all  the  real  estate  of  Medcef  Eden  the  younger,  late 
of  Westchester  county,  in  the  state  of  New  York  ;  and  also  ad- 
ministrator of  the  goods,  chattels  and  credits  which  were  of 
Rachel  Eden,  of  the  city  of  New  York,  widow,  deceased."  The 
complainant  in  the  bill  alleges  "that  in  pursuance  of  the  will  of 
the  said  Medcef  Eden  the  younger,  in  the  bill  of  the  said  Rachel 
Eden  set  forth,  and  herein  before  set  forth,  your  orator  hath  taken 
upon  himself  the  burthen  of  executing  the  trusts  and  duties  re- 
quired of  him  by  the  said  will,  according  to  the  provisions  therein 
contained,  and  become  duly  qualified  as  executor  to  the  said 
will." 

It  may  be  admitted  as  a  principle,  and  was  not  at  all  disputed 
on  the  argument,  that  a  probate  granted  in  one  state,  cannot  be 
used  in  the  courts  of  another.  It  is  too  plain  to  require  illustra- 
tion:  1  Cranch,  258,  282;  3  Cranch,  219  ;  9  Cranch,  151 ;  3 
Mass.  R.  514 ;  1  Pick.  82  ;  Toller,  72  ;  3  Mason,  472 ;  4  Mason, 
19.  The  only  questions  that  can  be  made,  are  these : 

1.  Is  it  necessary  to  allege  in  the  bill  the  granting  of  probate  ? — • 
and  if  so, 

2.  Is  it  properly  alleged  in  the  present  bill  ? 

On  the  first  point,  I  am  satisfied  that  it  ought  to  appear  by  the 
bill  that  the  party  has  authority  to  sue  in  the  character  of  execu- 
tor; and  that  it  will  not  answer  to  rely  on  proving  the  fact  at  the 
hearing  of  the  cause.  The  omission  of  such  allegation  has  often 
been  the  subject  matter  of  a  demurrer;  and  I  think,  that  from 
the  cases  themselves,  as  well  as  from  the  reason  of  the  thing,  there 
can  be  no  doubt  as  to  the  correct  course  to  be  pursued. 

In  Humphreys  v.  Incledon>  I  P.  Wms.  753,  a  bill  was  brought 
by  an  executor  for  the  recovery  of  assets,  and  it  did  not  appear  that 
he  had  proved  the  will.  The  defendant  demurred,  because  ft  did 
not  appear  by  the  bill  that  the  plaintiff  had  proved  his  testator's 
will  in  any  court,  and  Ld.  Macclesfield  allowed  the  demurrer  ;  and 
such  was  admitted  by  the  register  to  be  the  practice  of  the  court. 


334  CASES  IN  CHANCERY. 

Pelletreau  v.  Rathbone. 

In  later  cases  of  very  high  authority,  the  necessity  of  such  an 
allegation  is  fully  recognized.  In  Armstrong  v.  Lear,  12  Wheat. 
169,  the  question  arose  on  a  claim  under  the  will  of  general  Kos- 
ciuszko  ;  and  the  court  said  explicitly,  that  it  was  indispensable  to 
the  plaintiff's  title,  to  procure  in  the  first  instance  a  regular  pro- 
bate of  the  testamentary  paper  in  the  orphan's  court  of  the  District 
of  Columbia,  (where  the  suit  was  originally  brought,)  and  to  set  forth 
that  fact  in  his  bill.  In  that  case  the  objection  was  not  taken  in 
limine  by  a  demurrer,  but  at  the  hearing  upon  the  merits  of  the  case. 
In  Trecothick  v.  Austin  and  aL,  4  Mason,  16,  the  point  came  up 
on  demurrer,  and  the  opinion  of  Justice  Story  is  in  favor  of  the 
demurrer  on  that  ground,  although  the  case  was  not  decided  ex- 
pressly on  that  point.  See  also,  on  this  subject,  Picquet  v.  Swan 
and  aL,  4  Mason,  460,  461. 

I  believe  that  this  question  has  been  up  heretofore  in  this  court, 
in  the  case  of  the  Executors'of  Clymer  v.  James,  Ridgeway  and  al. ; 
and  it  was  then  held  necessary  that  it  should  appear  on  the  bill 
that  the  probate  had  been  granted.  I  am  not  sure  that  the  decision 
did  not  go  further,  but  what  I  have  stated  of  it  is  sufficient  for  my 
present  purpose. 

The  old  authorities  cited  at  the  bar,  are  not  essentially  at  va- 
riance with  what  I  take  to  be  correct  principle.  In  Fell  v.  Lut- 
widge,  2  Atk.  120,  it  appeared  upon  the  investigation  that  the 
administration  was  not  actually  taken  out  until  after  the  filing  of 
the  bill ;  yet,  haviug  procured  it  before  the  cause  came  to  a  hear- 
ing, it  was  held  sufficient  in  equity,  though  not  good  at  law, 
because  the  defendant  there  might  crave  oyer  of  the  letters.  But 
it  is  to  be  considered  that  it  was  charged  in  the  bill  that  letters 
of  administration  had  been  &ken  out,  and  therefore  the  com- 
plainant was  entitled  to  a  demand  against  the  defendant.  This 
was  not  denied  by  the  answer.  The  bill  was  good  on  the  face  of 
it,  and  the  proof  necessary  to  establish  the  facts  charged,  was 
held  sufficient  in  equity,  by  relation.  The  case  of  Humphreys 
v.  Humphreys,  2  P.  Wms.  350,  is  not  in  point.  There  a  bill 
was  filed  for  an  account  of  personal  estate.  The  person  having 
the  right  to  administer  on  the  estate  was  a  party,  but  administra- 
tion was  not  actually  taken  out.  The  bill  was  demurred  to  on 


JULY  TERM,  1831.  335 

Pelletreau  v.  Rathbone. 

that  ground,  and  the  demurrer  allowed.  Afterwards  letters  of 
administration  were  taken  out,  and  the  bill  amended  ;  and  it  was 
then  objected  that  the  matter  should  have  been  charged  in  a  sup- 
plemental, and  not  merely  an  amended  bill ;  and  this  was  the  ob- 
jection that  was  overruled  by  the  Ld.  Chancellor  with  some 
warmth.  He  observes  at  the  same  time,  as  a  dictum,  that  where 
an  executor,  before  proving  the  will,  brings  a  bill,  yet  his  subse- 
quent proving  of  the  will  makes  the  bill  a  good  one,  though  the 
probate  was  after  the  filing  of  it.  I  presume  he  must  be  taken  as 
intending  to  say,  that  in  all  such  cases,  the  bill  should  allege  that 
probate  had  been  taken  out,  whether  the  fact  were  so  or  not ;  other- 
wise this  saying  of  Ld.  Macclesfield  would  directly  contradict  his 
former  decision,  just  quoted.  Understanding  this  dictum  as  I 
think  it  ought  to  be  understood,  it  is  in  perfect  accordance  with  all 
the  cases  on  the  subject. 

In  Osgood  v.  Franklin,  2  Johns.  C.  R.  it  was  objected  that 
the  complainants  produced,  as  their  authority  to  sue,  letters  tes- 
tamentary from  the  state  of  Pennsylvania,  and  that  they  were  of 
no  force  in  another  state.  In  answer  to  which,  the  court  remarked, 
that  the  production  of  a  probate  recently  taken  out  in  New- 
York,  cured  that  defect;  and  added,  that  "it  seems  to  be  pretty 
well  settled  that  where  no  objection  is  raised  by  pleading,  a  pro- 
bate taken  out  at  any  time  before  the  hearing,  is  sufficient  in  this 
court."  The  same  doctrine  is  held  in  Goodrich  v.  Pendleton, 
4  Johns.  C.  jR.  549,  and  Doolittle  v.  Lends,  7  Johns.  C.  R. 
51. 

The  conclusion  is,  that  it  is  necessary  to  set  forth  in  the  bill  the 
fact  of  the  probate  of  the  will. 

The  next  inquiry  is,  whether  in  this  case  the  matter  is  suffi- 
ciently alleged.  The  complainant  says,  that  he  hath  taken  upon 
himself  the  burthen  of  executing  the  trusts  and  duties  required 
of  him  by  the  will,  and  become  duly  qualified  as  executor.  Now 
this  may  all  be  true,  and  yet  the  party  have  no  right  to  come 
into  this  court  in  the  capacity  of  executor.  It  appears  on  the  face 
of  the  proceedings,  that  Medcef  Eden,  the  testator,  lived  in  West- 
chester,  in  the  state  of  New-York.  Rachel  Eden  resided  in  J^Tew- 
York.  The  assets  were  in  that  state,  and  the  will  was  proved 
there  by  Rachel  Eden.  If,  then,  John  Pelletreau,  who  is  also  a 


336  CASES  IN  CHANCERY. 

Pelletreau  v.  Rathbone. 

resident  in  that  state,  has,  as  he  says,  become  duly  qualified  as  exe- 
cutor, shall  he  be  taken  to  be  duly  qualified  in  New  York  or  New- 
Jersey  ?  It  was  easy  for  him  to  make  the  proper  allegation,  if  he 
had  chosen  to  do  so. 

The  object  of  requiring  the  complainant  to  set  out  in  his  bill, 
that  he  has  proved  the  will,  is  a  single  one  ;  that  the  court  may  see 
he  has  right  to  appear  there  in  a  representative  capacity.  It 
ooght,  then,  to  be  set  forth  in  such  way  as  to  satisfy  the  court  of 
that  fact.  It  should  not  be  left  to  inference,  especially  where  the 
natural  and  just  inference,  (as  in  this  case,)  would  lead  to  a  con- 
trary conclusion.  In  the  case  of  Armstrong  v.  Lear,  already  cited 
from  12  W/ieaton,  the  court  said  expressly,  that  it  should  appear 
on  the  face  of  the  bill,  that  the  will  had  been  regularly  proved  in 
the  orphan's  court  of  the  very  district  in  which  the  suit  was  brought ; 
and  for  the  want  of  that  fact  appearing,  the  whole  proceedings  were 
arrested. 

It  has  been  held  unnecessary,  in  England,  to  allege  in  the  bill 
in  what  court  the  will  was  proved.  If  proved  within  the  king- 
dom, it  will  be  sufficient.  And  by  parity,  if  it  be  stated  that  the 
will  has  been  duly  proved  within  the  state  of  New- Jersey,  it  might 
be  sufficient,  without  specifying  whether  such  proof  was  in  either 
of  the  orphan's  courts,  or  before  the  ordinary. 

I  incline  to  follow  the  case  in  Wheaion  ;  not  only  on  account  of 
its  high  authority,  but  on  the  plain  principle,  that  if  it  be  necessary 
to  make  the  allegation  at  all,  (and  that  it  is,  I  cannot  doubt,)  it 
should  be  made  in  such  way  as  fully  and  substantially  to  answer 
the  objects  for  which  it  is  intended.  In  this  particular  the  bill, 
more  especially  as  a  bill  of  revivor,  in  which  the  party  is  supposed 
to  set  out  specifically  his  right  to  represent  the  former  complainant, 
appears  to  me  defective ;  and  as  to  this  part  of  it,  the  demurrer  is 
well  taken,  and  must  be  allowed. 

The  second  ground  of  demurrer  is,  that  the  bill  is  multifari- 
ous ;  and  it  may  be  expected  that  something  will  be  said  on  that 
head. 

The  original  bill  was  filed  by  Rachel  Eden.  She  was  the  ex- 
ecutfix  of  Medcef  Eden  the  younger,  and  also  a  devisee  in  trust 
under  the  will  of  said  Medcef  Eden.  Part  of  the  rents  and  pro- 
fits demanded  in  the  bill,  accrued  in  the  life  time  of  the  testator ; 


JULY  TEEM,  1831.  337 


Pelletreau  v.  Rathbone, 


and  for  these  it  was  necessary  she  should  oome  into  the  court  in 
her  representative  capacity.  Part  of  them  accrued  after  the  death 
of  Medcef  Eden,  and  could  not  be  recovered  by  her  as  executrix, 
but  as  derisee.  Whether  she  intended  to  prosecute  both  claims 
in  the  same  suit,  and  whether  if  so  intending  she  could  legally 
do  it ;  or  whether  she  intended  to  proceed  as  executrix  or  as  de- 
visee, separately,  are  matters  not  proper  to  be  inquired  into  at 
this  time.  The  question  is,  whether  the  original  sait  is  properly 
revived  by  this  bill  of  revivor  and  supplement,  I  think  it  is.  It 
is  revived  by  Pelletreau,  as  executor  of  Medcef  Eden,  deceased, 
and  also  as  administrator  of  Rachel  Eden,  deceased.  The  bill 
of  revivor  corresponds  with  the  original  bill,  and  brings  before 
the  court  the  proper  persons  representing  the  parties  in  that  bill ; 
and  to  that  there  can  be  no  objection. 

But  it  is  said,  that  Pelletreau  comes  in  a  character  which  is 
not  a  representative  character  ;  that  he  styles  himself  not  only 
executor,  but  devisee  in  trust  of  all  the  real  and  personal  es- 
tate of  Medcef  Eden  the  younger.  That  he  does  so  style 
himself  in  the  commencement  of  the  bill,  is  true  ;  but  I  do  not 
find  that  he  relies  in  any  degree  in  the  supplemental  part  of 
the  bill,  on  any  rights  he  may  have  as  such  devisee  in  trust. 
After  setting  out  the  fads,  that  he  had  become  duly  qualified  to  act 
as  executor  of  the  will  of  Medcef  Eden,  deceased  ;  and  that  he 
had  taken  out  letters  of  administration  on  the  estate  of  Rachel 
Eden,  deceased  ;  he  states  that  by  virtue  of  the  premises,  he  has 
taken  upon  himself  the  bnrtFen  of  executing  the  said  will  upon 
the  trusts  therein  expressed,  and  hath  become  entitled  to  revive 
the  said  action,  so  as  aforesaid  commenced  against  the  said  John 
Rathbone,  by  the  said  Rachel  Eden,  deceased.  He  does  not 
state,  that  under  this  bill  he  is  entitled  to  come  in  claiming  ori- 
ginally as  a  devisee  in  trust.  Whether  he  will  so  claim,  is  a 
matter  which  the  court  cannot  now  determine ;  and  it  would  be 
harsh  to  allow  a  demurrer  simply  on  the  ground  that  a  party 
coming  properly  into  court  as  an  executor,  had  also  styled  himself 
a  devisee  in  trust. 

It  is  presumed  that  the  question  here  sought  to  be  raised,  may 
more  fairly  and  properly  be  brought  up  in  another  stage  of  d»« 
cause,  when  the  views  of  the  complainant  shall  be  more  fully  de- 

T 


338  CASES  IN  CHANCERY. 

Stevenson  and  Woodruff  v.  Black. 

veloped,  and  the  court  be  enabled  to  discover  with  precision  the 
grounds  on  which  he  seeks  to  rest  his  claims. 

At  present  I  feel  it  my  duty  to  say,  that,  as  to  the  last  ground, 
the  demurrer  is  not  well  taken  ;  on  the  first  ground,  it  must  be 
allowed. 

Demurrer  allowed. 


WILLIAM  STEVENSON,  AND  T.  L.  WOODRUFF,  SURVIVING  EX- 
ECUTOR OF  A.  D.  WOODRUFF,  DECEASED,  v.  JOHN  BLACK. 


S.  L.  Howell  executed  to  S.  Whitall  six  bonds,  for  two  thousand  dollars  each, 
payable  annually,  and  a  mortgage  to  secure  payment  thereof  on  a  part  of 
Hog  Island,  Delaware  county,  Pennsylvania.  After  receiving  payment  of 
the  first  bond,  Whitall  assigned  and  delivered  the  second  bond  to  W.  Steven- 
son, the  third  and  fourth  to  the  executors  of  A.  D.  Woodruff,  and  the  fifth 
and  sixth,  together  with  the  mortgage,  to  J.  Black;  who  caused  a  judgment 
to  be  entered  up  against  Howell  on  one  of  the  bonds,  in  the  common  pleas 
of  Delaware  cojinty,  and  an  execution  to  be  issued  thereon,  by  virtue  of 
which  the  mortgaged  premises  were  levied  on  and  exposed  to  sale  by  the 
sheriff,  subject,  among  others,  to  the  following  condition  :  "The  above  de- 
scribed property  is  sold,  subject  to  the  payment  of  a  mortgage  from  S.  L. 
Howell  to  S.  Whitall,  dated  22d  March,  1817,  and  recorded  in  Delaware 
county,  in  Mortgage  book  D,  page  27,"  &c.  After  Black,  the  plaintiff,  bid 
one  dollar  for  the  premises,  the  sheriff,  at  the  instance  of  Woodruff,  added 
to  the  condition  these  words  :  "  And  the  several  bonds  secured  by  the  said 
mortgage."  The  premises  were  struck  off  to  Black  at  his  bid,  and  he  sign- 
ed the  conditions,  protesting,  however,  against  the  alteration  of  the  con- 
ditions, and  declaring  he  would  not  pay  the  bonds.  This  addition 'to  the 
conditions  of  sale  created  no  new  contract  to  bind  the  purchaser  personally 
to  pay  the  bonds  held  by  Stevenson  and  Woodruff;  and  their  bill,  seeking 
to  charge  him  personally,  was  dismissed. 

The  sheriff  is  bound  to  sell  according  to  law,  and  the  exigency  of  hig  writ; 
he  is  not  justified  in  imposing  terms  on  the  purchaser 'different  from  those 
imposed  by  the  law.  If  he  undertakes,  by  any  conditions  of  sale,  to  vary 
the  relative  position  of  parties,  and  create  liabilities  which  the  law  does  not 
impose,  he  exceeds  his  authority,  and  the  purchaser  is  not  bound. 

On  general  principles,  the  purchaser  of  an  equity  of  redemption  is  not  per- 
sonally liable  for  the  amount  of  the  mortgage  debt ;  by  the  purchase  and 
sale  the  liability  is  not  changed  as  between  the  mortgagor  and  mortgagee  ; 
the  obligor  is  still  liable  to  the  obligee  on  his  bond,  and  the  obligee  or  his 
assignee  cannot  transfer  the  personal  liability  to  the  purchaser. 

AB  between   the  mortgagor  and  the  purchaser  of  a  simple  equity  of  redemp- 


JULY  TERM,  1831.  339 

Stevenson  and  Woodruff  v.  Black. 

tion,  where  the  mortgage  money  constitutes,  in  fact,  a  part  of  the  considera- 
tion of  the  purchase ;  the  mortgagor  has  a  right  to  be  indemnified  by  the 
purchaser,  against  all  personal  liability  on  the  bond. 

The  uniform  language  of  a  court  of  equity  is,  that  where  the  purchaser  (of  an  equity 
of  redemption)  is  in  possession  and  receives  the  rents  and  profits,  there  is 
raised  upon  his  conscience,  independently  of  any  contract,  an  obligation  to 
indemnify  the  vendor  against  the  personal  liability  to  pay  the  mortgage  money. 

By  a  mortgagee,  or  assignee  holding  one  of  the  bonds  secured  by  a  mortgage,  be- 
coming the  purchaser  of  the  equity  of  redemption,  that  part  of  the  mortgage 
debt  due  to  himself  on  the  bonds  he  holds,  is  extinguished. 

Is  is  a  general  rule,  that  where  there  is  a  bond  and  mortgage,  the  assignment  of 
the  bond  operates  as  an  assignment  of  the  mortgage  :  the  bond  is  the  principal, 
and  the  mortgage  is  the  incident. 

Where  a  mortgagee  assigns  one  of  the  bonds  secured  by  the  mortgage,  retaining  the 
mortgage  himself;  the  assignee  becomes  equitably  interested  in  the  mortgage 
to  the  amount  of  his  debt  or  bond,  and  the  holder  of  the  mortgage  a  trustee  for 
the  assignee  of  the  bond,  pro  tanto. 

But  the  assignee  of  the  bond  has  not  any  claim  against  the  mortgagee,  personally, 
growing  out  of  the  transfer  of  the  bond  ;  his  claim  is  upon  the  mortgage  or 
the  estate  bound  by  the  mortgage,  and  that  claim  remains,  no  matter  in 
whose  hands  the  estate  may  be. 

The  assignee  of  the  mortgage  stands,  quoad,  in  the  shoes  of  the  mortgagee;  his 
rights  and  liabilities  are  the  same,  and  not  different. 

It  appears  from  the  pleadings  and  evidence  in  this  case,  that  on 
the  22d  of  March,  1817,  Samuel  L.  Howell,  ftf  Gloucester  county, 
executed  to  Samuel  Whitall,  of  the  same  place,  six  several  bonds, 
conditioned  for  the  payment  of  two  thousand  dollars  each,  with 
interest  from  the  25th  day  of  March  then  instant.  The  first  of  the 
said  six  bonds  became  due  and  payable  on  the  25th  of  March, 
1818;  the  second,  in  March,  1819;  the  third,  in  March,  1820; 
the  fourth,  in  March.  1821  ;  the  fifth,  in  March,  1822;  and  the 
last  one,  in  March,  1823.  To  secure  the  payment  of  the.  moneys 
due  on  these  bonds,  Howell  on  the  same  day  executed  to  Whitall  a 
mortgage,  whereby  he  granted,  and  confirmed  unto  him,  the  said 
Whitall,  his  heirs  and  assigns,  all  that  part  of  Hog  Island,  in  the 
river  Delaware,  contained  in  certain  boundaries,  in  the  said  mort- 
gage particularly  specified. 

The  first  bond  was  paid  and  discharged  l>y  Howell.  In  October, 
1817,  Whitall  assigned  the  second  bond  to  William  Stevenson,  one 
of  the  complainants. 


340  CASES  IN  CHANCERY. 

Stevenson  and  Woodruff  v.  Black. 

In  July,  1818,  he  assigned  the  third  and  fourth  bonds  to  the 
executors  of  Woodruff. 

In  February,  181*9,  he  assigned  the  fifth  and  sixth  bonds  (being 
the  two  last)  to  John  Black,  the  defendant,  and  at  the  same  time 
assigned  to  him  the  mortgage,  which  until  that  time  had  remained 
in  his  possession. 

In  February,  1823,  John  Black,  in  the  name  of  Samuel 
Whitall,  but  for  his  own  use,  caused  a  judgment  to  be  entered 
up  on  one  of  the  bonds  thus  assigned  to  him,  in  the  court  of 
common  pleas  of  the  county  of  Delaware,  and  state  of  Pennsyl- 
vania; upon  which  an  execution  issued  in  due  form  of  law.  By 
virtue  of  this  execution  the  mortgaged  premises,  (or  the  right  of 
Howell  therein,)  were  levied  on,  and  in  October,  1#23,  they  were 
sold  at  sheriff's  sale,  and  purchased  by  John  Black,  for  the  sum  of 
one  dollar. 

It  appears  that  Black  attended  the  sale  in  person,  and  bid  for 
the  property.  One  of  the  articles  of  sale  was  as  follows :  "  The 
foregoing  described  property  is  sold  subject  to  the  payment  of  a 
mortgage  from  Saml.  L.  Howell  to  Samuel  Whitall,  dated  22d 
March,  1817,  and  recorded  in  Delaware  county,  in  Mortgage  book 

D,  page  27,"  &c.     After  Black  had  made  his  bid,  and  before  the 
property  was  struck  off,  the  sheriff  was  induced,  at  the  instance  of 

E.  D.  Woodruff,  one  of  the  executors  of  A.  D.  Woodruff,  deceased, 
to  add  the  following  words  to  the  condition  above  recited  :  "  And 
the  several  bonds  secured  under  the  said  mortgage"     Against  this 
addition  or  alteration,  Black  objected  at  the  time.     He  nevertheless 
completed  the  purchase,  by  permitting  the  property  to  be  struck 
off  to  him,  and  signed  the  articles  of  sale,  protesting  however 
against  the  alteration  of  the  conditions,  and  declaring  publicly  that 
he  would  never  pay  the  bonds. 

The  sheriff,  who  was  examined  as  a  witness,  states,  that  con- 
siderable altercation  took  place;  that  Black  refused  to  sign  the 
agreement  annexed  to  the  conditions  of  sale,  upon  any  terms 
other  than  those  which  had  been  read,  and  upon  which  he  bid 
for  the  property.  The  sheriff  told  Black,  he  did  not  consider  him 
responsible  any  further  than  the  conditions  bound  him  at  the  time 
of  his  making  the  bid  ;  and  as  to  the  alteration  made  at  the  sug- 
gestion of  Mr.  Woodruff,  that  Mr.  Black  and  Mr.  Woodruff  must 


JULY  TERM,  1831.  341 

Stevenson  and  Woodruff  v.  Black. 

settle  it  between  themselves.  Black  also  declared,  that  if  any  of 
the  persons  interested  in  the  property  would  come  forward  and  bid 
for  it,  it  should  be  again  set  up  for  sale. 

It  further  appears,  that  Black  received  the  sheriff's  deed,  and 
went  into  possession  under  it,  and  has  since  that  time  been  in  the 
receipt  of  the  rents  and  profits. 

The  object  of  the  complainants'  bill  is  to  charge  Black,  the  de- 
fendant, personally  and  specifically  with  the  payment  of  the  bond 
assigned  to  Stevenson,  and  the  two  bonds  assigned  to  the  executors 
of  Woodruff.  The  case  was  argued  by 

G.  D.  Wall,  for  the  complainants ; 
G,  Wood,  for  the  defendant. 

Cases  cited  :— 4  Cow.  R.  278  j  1  Paine  C.  C.  R.  535 ;  2  Gal- 
Hs.  R.  154 ;  5  Wheat.  R.  257 ;  3  Pow.  M.  908 ;  5  Cow.  R.  202  ; 
3  John..  C.  R.  302,  46 I,  467  ;  11  John.  R.  534  ;  4  Pick.  R.  131  ; 

2  John.   Ca.  441  ;  2  Wash.  R.  233,  255;  12  Mass.  R.  26,  30;  2 
John.  R.  595,  612;  2  Ves.  R.  692,  765;  1   Ves.  R.  122;  1  Pow. 
M.  345,  574;  Sugd.  219-20;  7  Ves.  jr.  331-7;  3  Ves.  jr.  128; 

3  Peters1  U.  S.  R.  293,  305 ;   Hopk.  C.  R.  239 ;   Pow.  M.  884 ; 
2  Bro.  C.  C.  152  ;  3  Atk.  R.  244. 

THE  CHANCELLOR.  If  Black  be  liable  at  all,  in  personam, 
it  must  arise  out  of  the  general  principles  of  equity  resulting  from 
his  situation  as  a  purchaser  of  the  equity  of  redemption,  subject 
to  the  mortgage,  and  being  in  possession  of  the  mortgaged  pre- 
mises, receiving  the  rents,  issues  and  profits  thereof; — or,  it  must 
spring  out  of  some  express  agreement,  whereby  he  is  to  be  charged, 
distinct  from  his  liability  as  a  purchaser.  Let  us  examine  these 
grounds,  and  see  whether  they  will  sustain  the  plaintiffs  in  their 
claims. 

On  general  principles,  as  held  in  this  court,  the  purchaser  of 
an  equity  of  redemption  is  not  personally  liable  for  the  amount 
of  the  mortgage  debt.  By  the  purchase  and  sale,  the  personal 
liability  is  not  changed  as  between  the  mortgagor  and  mortgagee. 
The  obligor  is  still  answerable  to  the  obligee  on  his  bond,  and 


342  CASES  IX  CHANCERY. 

Stevenson  and  Woodruff  v.  Black. 

the  obligee,  or  his  assignee,  cannot  transfer  the  personal  liability 
to  the  purchaser.  As  between  the  mortgagor  and  the  purchaser 
of  a  simple  equity  of  redemption,  where  the  mortgage  money 
constitutes,  in  fact,  a  part  of  the  actual  consideration  of  the  pur- 
chase, the  mortgagor  has  a  just  right  to  be  indemnified  by  the 
purchaser  against  all  personal  liability  on  the  bond.  The  uniform 
language  of  a  court  of  equity  is,  that  where  the  purchaser  is  in 
possession,  and  receives  the  rents  and  profits,  that  there  is  raised 
upon  his  conscience,  independently  of  any  contract,  an  obligation 
to  indemnify  the  vendor  against  the  personal  obligation  to  pay 
the  mortgage  money  ;  for  having  become  owner  of  the  estate,  he 
must  be  supposed  to  intend  to  indemnify  the  vendor  against  the 
mortgage  :  Waring  v.  Ward,  7  Ves.  337 ;  Twedddl  v.  Twedddl,  1 
Bro.  C.  C.  152. 

In  this  case.  Black  is  the  purchaser  of  the  equity  of  redemp- 
tion at  sheriff's  sale.  He  also  held  two  of  the  original  bonds,  by 
assignment  from  Whitall.  On  one  of.  these  bonds  a  judgment 
had  been  entered  up,  and  his  purchase  was  under  an  execution 
on  this  judgment.  He  is  also  the  assignee  of  the  mortgage.  As 
it  regards  that  part  of  the  mortgage  debt  due  from  Howell  to 
Black,  it  is  extinguished  by  the  purchase.  Black  purchased  the 
equity  of  redemption  for  one  dollar.  Strictly  speaking,  the  debt 
remains:  but  if,  as  holder  of  the  bonds,  he  were  to  resort  t-»  his 
suit  at  law  against  Howell,  the  obligor,  for  the  recqvery  of  the 
money;  it  is  manifest  that  ss  purchaser,  and  bound  to  indemni- 
fy the  mortgagor,  he  might  be  immediately  prosecuted  by  the 
mortgagor  and  the  money  recovered  back  again  :  Tice  v.  Annin,  2 
John.  C.  R.  129.  This,  as  the  court  said  in  that  case,  would  be  an 
idle  and  absurd  proceeding  ;  and  therefore  there  seems  to  be  no 
other  alternative,  than  to  consider  the  debt  as  extinguished  in  the 
hands  of  the  purchaser. 

But  the  controversy  here  is  not  between  the  mortgagor  and 
the  purchaser.  The  mortgagor  has  not  been  disturbed,  nor  is  he 
called  on  to  pay  the  bonds.  William  Stevenson,  one  of  the  com- 
plainants, is  the  holder  of  the  second  bond,  by  assignment  from 
Whitall ;  and  Woodruff  holds  the  third  and  fourth  bonds,  also 
by  assignment  from  Whitall.  By  virtue  of  these  assignments 
they  claim  to  have  an  interest  in  the  mortgage ;  and  insist  that 


JULY  TERM,  1831.  343 

Stevenson  and  Woodruff  v.  Black. 

Whitall,  after  he  made  the  assignments  to  them,  was,  as  holder  of 
the  mortgage,  a  trustee  for  them  respectively  :  that  consequently 
they  have  an  equitable  interest  in  the  mortgage,  and  are  entitled 
to  be  paid.  And  they  further  insist,  that  at  the  time  of  the  as- 
signment of  the  mortgage  to  Black,  he  had  full  notice  that  the 
three  bonds  in  the  hands  of  the  complainants  were  unsatisfied ; 
and  even  if  he  had  no  notice,  yet  in  equity  they  have  a  lien  on 
the  mortgage  for  the  satisfaction  of  their  claims.  There  is  no  evi- 
dence whatever,  of  any  direct  notice  to  Black,  that  these  bonds 
were  outstanding;  much  less,  that  they  were  to  be  considered  as 
attached  to  the  mortgage.  The  mortgage,  so  far  from  being 
assigned  to  the  holders  of  these  bonds,  was  left  in  the  hands  of 
the  original  mortgagee;  and  the  claim  of  the  plaintiffs  upon  it, 
if  they  have  any,  is  purely  an  equitable  claim. 

It  is  a  general  rule,  that  where  there  are  a  bond  and  mort- 
gage, the  assignment  of  the  bond  operates  as  an  assignment  of 
the  mortgage.  The  bond  is  the  principal,  the  mortgage  is  the 
incident.  There  are  some  exceptions  to  this  rule,  not  necessary 
now  to  be  noticed.  I  think  the  principle  will  well  apply  to  the 
case  before  the  court.  When  Whitall  assigned  to  Stevenson  the 
second  bond,  retaining  the  mortgage  himself,  Stevenson  became 
equitably  interested  in  the  mortgage  to  the  amount  of  his  debt  or 
bond ;  and  Whitall,  holding  the  mortgage,  was  a  trustee  for 
Stevenson,  pro  tanto.  And  so,  in  like  manner,  he  became  a 
trustee  for  the  executors  of  Woodruff  to  the  amount  of  their  two 
bonds.  But  what  rights  are  conferred  by  this  equitable  interest 
in  the  mortgage?  Had  Stevenson  and  Woodruff  any  claim  what- 
ever against  Whitall,  personally,  (while  he  held  the  mortgage,) 
growing  out  of  the  transfer  of  the  bonds?  I  conceive  not.  Their 
claim  was  upon  the  mortgage,  or  the  estate  bound  by  the  mort- 
gage, and  that  only.  Is,  then,  Black  placed,  in  any  sense,  in 
a  different  situation  as  assignee  of  the  mortgage  ?  His  rights  and 
liabilities  are  the  same,  and  not  different.  He  stands,  quo  ad  hoc, 
in  the  shoes  of  Whitall.  Have  they,  then,  any  claim  against 
Black  personally,  growing  out  of  his  situation  as  purchaser  of 
the  equity  of  redemption  ?  We  have  seen  that  by  such  purchase 
his  own  claim  was  extinguished;  but  did  he  thereby  make  the 
whole  mortgage  debt  his  own,  and  become  personally  liable  to 


344  CASES  IN  CHANCERY. 

Stevenson  and  Woodruff  v.  Black. 

the  mortgagee,  or  his  assigns  ?  I  am  not  able  to  perceive  how  such 
a  result  is  to  spring  out  of  the  transaction.  The  claim  is  upon  the 
estate,  not  upon  the  purchaser;  and  the  claim  remains,  no  matter 
in  whose  hands  the  estate  may  be. 

The  complainants  have  not,  then,  as  I  apprehend,  any  such 
rights  against  the  defendant,  growing  out  of  general  principles  of 
equity,  independent  of  any  special  contract,  as  are  set  up  in  their 
bill.  If  the  suit  can  be  maintained  at  all,  it  must  be  on  the  ground 
of  the  alleged  contract  entered  into  at  the  time  of  the  sheriff's  sale. 
This  remains  to  be  examined.  • 

Black  certainly  was  not  bound  by  his  bid  after  the  alteration 
made  in  the  conditions  of  sale,  even  if  he  were  before.  He 
might  have  withdrawn  his  bid,  if  he  had  chosen,  and  avoid- 
ed all  this  difficulty.  But  he  was  not  bound  to  do  so.  He 
was  the  real  plaintiff  in  the  execution,  and  of  course  interested 
in  the  sale  of  the  property.  It  is  clear,  from  the  evidence,  that 
Black  did  not  intend  to  subject  himself  personally  to  the  payment 
of  the  bonds;  and  such  was  the  understanding  of  the  sheriff. 
The  alteration  was  made  at  the  instance  of  Woodruff,  not  of  the 
sheriff;  and  the  sheriff  told  Black,  before  the  purchase,  that  he 
did  not  consider  him  liable,  and  that  he  and  Woodruff  could  set- 
tle the  matter  "between  themselves.  But  whatever  may  have 
been  the  intention  of  the  sheriff,  he  was  not  justified  in  imposing 
terms  on  the  purchaser  different  from  those  imposed  by  the  law. 
He  was  the  officer  of  the  law,  and  as  such,  bound  to  sell  ac- 
cording to  the  direction  of  the  law,  and  not  the  direction  of  any 
interested  person.  It  would  be  strange,  indeed,  if  it  were  other- 
wise. It  would  be  in  the  power  of  a  sheriff  to  embarrass,  if  not 
wholly  defeat,  any  sale,  by  the  imposition  of  terms  such  as  the 
law  will  not  warrant.  It  is  the  duty  of  the  sheriff  to  sell  the 
property  according  to  the  exigency  of  the  writ.  If  he  undertake, 
by  any  conditions  of  sale,  to  vary  the  relative  position  of  parties, 
and  to  create  liabilities  which  the  law  does  not  impose,  he  ex- 
ceeds his  authority,  and  the  party  is  not  bound.  What  was  the 
sheriff  required  to  sell?  Only  Howell's  right  to  the  property — his 
equity  of  redemption.  If  the  purchaser  became  liable  to  pay  the 
bonds,  a  condition  of  sale  to  that  effect  was  unnecessary.  If  there 
was  no  such  liability,  surely  it  cannot  be  permitted  to  the  sheriff 


JULY  TERM,  1831.  345 


Stevenson  and  Woodruff  v.  Black. 


to  create  one  at  his  pleasure,  or  the  pleasure  of  some  person  more 
interested.  If  he  can  create  one,  he  can  create  more,  and  there 
would  be  no  limit  to  his  power. 

I  am  clearly  of  opinion,  that  there  was  no  new  contract  created 
ly  the  additional  terms  of  sale,  in  favor  of  these  complainants.  The 
property  was  sold  subject  to  the  incumbrance,  whatever  that  might 
be,  in  the  same  way  that  other  property  similarly  situated,  is  always 
sold.  The  sheriff  could  only  sell  and  convey  the  right  of  Howell, 
the  mortgagor,  which  was  the  right  to  redeem.  That  was  the  right 
purchased  by  Black,  subject  to  all  proper  equities;  and  these  are 
to  be  ascertained  by  the  known  and  settled  principles  of  equity,  aud 
not  by  the  terms  which  a  sheriff  or  creditor  may,  without  authority, 
choose  to  impose. 

But  taking  up  the  subject  in  another  point  of  view,  and  con- 
sidering the  alteration  of  the  conditions  of  sale  properly  made  and 
Black,  the  defendant,  bound  by  it,  does  it  amount  to  a  special 
personal  contract  to  pay  the  money  due  on  the  bonds  to  these 
complainants?  The  original  articles  stipulated  that  the  property 
wonld  be  sold  subject  to  the  payment  of  the  mortgage  from  Howell 
to  Whitall.  The  addition  was,  "  and  the  several  bonds  secured  un- 
der the  mortgage."  Does  this  amount  to  a  special  contract  with 
the  complainants,  so  as  personally  to  bind  Black  for  the  payment 
of  the  money?  The  sheriff  was  a  public  officer,  and,  strictly 
speaking,  not  the  agent  of  any  one;  or  i£  of  any  one,  it  must 
be  of  the  defendant  in  execution,  whose  property  he  sells,  rather 
than  of  third  persons.  May  not,  then,  this  contract  be  considered 
as  enuring  to  the  benefit  of  Howell,  for  the  purpose  of  indemni- 
fying him  against  his  personal  liability  on  the  bonds?  And  if  so, 
is  there  any  new  duty  imposed  on  the  purchaser?  Taking  the 
property  subject  to  the  incumbrance,  equity  imposes  on  him  the 
duty  of  indemnifying  the  obligor  against  personal  responsibility; 
and  that  is  all  this  contract  imports,  if  considered  as  made  for  the 
benefit  of  the  obligor. 

Again,  if  this  is  to  be  considered  as  a  personal  undertaking  by 
Black,  in  behalf  of  these  complainants,  to  pay  the  money  due 
on  the  bonds,  the  right  of  coming  into  this  court  for  relief  may 
well  be  questioned  :  such  contract  can  as  well  be  enforced  in  a  court 
of  common  law. 


346  CASES  IN  CHANCERY. 

Crane  et  al.  v.  Conklin  et  al. 

"What  remedy  the  party  complainant  may  be  entitled  to  else- 
where, or  upon  other  grounds,  it  is  not  for  the  court  to  determine. 
It  is  sufficient  to  say,  at  this  time,  that  the  relief  sought  for  at  the 
hands  of  this  court,  cannot  be  granted  ;  and  the  bill  must  therefore 
be  dismissed,  with  costs. 

Bill  dismissed. 

CITED  tn  Mertcin  v.  Smith,  1  Gr.  Ch.  197 ;  Hortshorne  v.  Harishornc,  Id.  358 ; 
Tichenor  v.  Dodd,  3  Gr.  Ch.  457  ;  BoUes  v.  Wade,  Id.  460 ;  M orris  Canal  & 
Banking  Co.  \.  Fisher,  1  Stockt.  697  ;  Adams  v.  Hudson  Co.  Bank,  2  Stockt.  541. 


ISAAC  CRANE  AND  OTHERS  v.  WILLIAM   D.  CONKLIN.  CALVIN 
FREEMAN  AND  JOHNSON  WARD. 


An  ejectment  bill,  technically  so  termed,  is  one  brought  simply  for  the  recovery 
of  real  property,  together  with  an  account  of  rents  and  profits,  without  setting 
out  any  distinct  and  substantive  ground  of  eqliity  jurisdiction,  which  would 
be'  deinurrable  where  there  is  no  proper  ground  of  equity. 

But  a  bill  to  set  aside  a  fraudulent  conveyance,  filed  by  those  who  without  the 
incumbrance  of  such  conveyance  are  undoubtedly  entitled,  is  altogether  differ- 
ent from  an  ejectment  bill,  and  comes  within  the  ordinary  powers  of  this 
court. 

The  bill  in  this  case,  filed  by  the  heirs  at  law,  to  set  aside  a  conveyance  fraudu- 
lently and  unconscientiously  obtained ;  without  any,  or  if  any,  a  totally  in- 
adequate consideration  ;  from  a  person  who  from  habitual  intoxication  and 
being  almost  incessantly  under  the  influence  of  liquor,  or  from  debility  of 
body  and  mind  arising  from  a  long  fit  of  intoxication  from  which  he  was 
then  just  recovering,  was  incapable  of  transacting  business  with  discretion, 
and  while  he  was  legally  incompetent  to  make  any  disposition  of  his  pro- 
perty ;  was  held  good,  on  demurrer. 

In  this  case,  an  ejectment  might  have  been  brought.  The  title  of  the  heirs  is 
strictly  a  legal  title,  and  might  have  been  asserted  in  a  court  of  law.  But  it 
does  not  follow,  that  because  a  party  may  resort  to  an  action  of  ejectment,  he 
nas  no  remedy  in  this  court.  The  principle  is  too  broad,  and  the  practice  of 
the  court  against  it.  There  are  many  cases  in  which  the  jurisdiction  of 
courts  of  law  and  equity  are  concurrent,  and  the  party  is  at  liberty  to  seek 
relief  in  either. 

It  is  a  well  settled  principle,  that  relief  is  to  be  obtained  in  this  court,  not  only 
against  writings,  deeds,  and  the  most  solemn  assurances-  but  against  judg- 
ments and  decrees,  if  obtained  by  fraud  and  imposition. 

If  there  has  been  the  suppression  of  a  truth,  or  the  suggestion  of  a  falsehood, 
whereby  a  party  is  circumvented  or  deceived,  equity  will  relieve  against  it. 

Where  undue  advantage  has  been  taken  of  the  weakness  or  necessity  of  the 
party  ;  or  of  any  situation  in  which  he  is  placed,  rendering  him  peculiarly 


JULY  TERM;  1831.  347 

Crane  et  al.  v.  Conklin  et  al. 

liable  to  imposition  ;  this  court  will  interfere.     It  proceeds  on  the  safe  prin- 
ciple, of  protecting  those  whose  are  not  able  to  protect  themselves. 

It  has  become  the  settled  rule  of  this  court,  that  it  will  not  interfere  to  assist  a 
person  on  the  ground  of  intoxication  merely  ;  but  if  any  unfair  advantage 
has  been  taken  of  his  situation,  it  will  render  all  proper  aid. 

Inadequacy  of  price  can  never  be  the  ground  of  setting  aside  a  deed,  unless  ac- 
companied with  fraud  or  misrepresentation  ;  but  this  is  only  where  the  party 
is  able  to  contract.  Where  the  party  was  intoxicated,  inadequacy  of  price 
is  direct  evidence  of  fraud. 

The  fact  of  the  price  not  being  paid,  is  no  ground  to  set  aside  a  deed.  The  fraud 
must  be  in  the  original  transaction,  and  not  in  the  non-fulfilment  of  the  con- 
tract. But  though  it  does  not  change  the  nature  of  the  transaction,  it  may, 
if  proved,  be  strong  testimony  to  show  iis  real  character. 


The  case  made  in  the  bill  is  shortly  this  :  That  William  M. 
Crane,  late  of  the  county  of  Essex,  being  seized  and  possessed 
of  a  considerable  real  and  personal  estate,  in  said  county,  amount- 
ing to  the  sum  of  four  thousand  dollars  or  upwards,  died  in  April, 
1829,  aged  fifty-five  years.  That  during  the  months  of  January 
and  February  of  the  year  preceding  his  death,  he  was  almost 
incessantly  under  the  influence  of  liquor,  so  as  to  be  incapable  of 
managing  his  business  with  discretion  ;  and  that,  when  for  a  few 
days  he  refrained  from  drink,  the  debility  of  his  body  and  mind 
was  so  great  as  to  render  him  incompetent  to  the  rational  trans- 
action of  his  concerns.  That  on  the  1st  of  February,  1828,  when 
he  was  in  a  situation  legally  incompetent  to  make  any  disposition 
of  his  property,  the  defendant  William  P.  Conklin,  who  was  a 
brother  of  the  wife  of  Crane,  and  the  defendant  Calvin  Free- 
man, also  a  relative  of  hers,  availing  themselves  of  the  situation 
of  Crane  at  the  time,  fraudulently  and  most  unconscientiously, 
and  without  any,  or  if  any,  a  totally  inadequate  consideration, 
procured  from  him  a  deed  in  fee  simple  for  all  his  real  estate. 
The  deed  purports  to  be  made  for  divers  good  considerations,  and 
for  the  sum  of  five  dollars,  money  of  the  United  States.  That 
in  order  to  give  color  to  these  fraudulent  designs,  they  executed 
at  the  same  time  to  the  said  Crane  and  his  wife,  a  certain  in- 
strument or  agreement,  whereby  they  covenanted,  in  considera- 
tion of  the  conveyance  aforesaid,  to  pay  off  and  discharge  all 
Crane's  debts,  and  to  allow  him  and  his  wife  during  their  joint 
lives,  and  the  life  of  the  survivor,  the  weekly  sum  of  one  dollar 


348  CASES  IN  CHANCERY. 

Crane  et  al.  v.  Conklin  et  al. 

and  seventy-five  cents,  to  be  paid  to  the  wife  of  Crane  during 
her  life-time,  for  their  use;  and  if  she  should  first  die,  then 
to  his  use  during  his  life.  They  were  also,  by  the  agreement,  to 
have  the  use  of  one  room,  and  a  privilege  in  the  garret,  cellar, 
and  garden. 

The  bill  then  charges,  that  Crane  owed  no  debts ;  that  the 
fourteen  shillings  per  week  was  not  paid,  or  if  it  was,  was  paid 
in  liquor  of  the  most  pernicious  quality.  That  his  wife  having 
died  soon  after  the  execution  of  the  deed,  he  was  left  in  a  state 
of  suffering  and  want,  many  days  going  without  food,  or  sus- 
taining himself  by  the  crumbs  of  charily.  That  the  defendants, 
Conklin  and  Freeman,  took  possession  of  the  property,  rented 
out  the  house  and  lands,  and  took  the  rents  and  issues  to  their 
own  use;  and  afterwards  sold  four  or  five  acres  of  it  to  Johnson 
Ward,  the  other  defendant,  who  purchased  with  notice  of  the 
fraud,  and  took  for  his  protection  a  warranty  deed. 

The  complainants,  who  are  the  heirs  .at  law  of  Crane,  pray 
that,  under  these  circumstances,  the  deed  from  Crane  and  wife 
to  Conklin  and  Freeman,  and  also  the  deed  from  them  to  Ward, 
may  be  deemed  to  be  fraudulent  or  unduly  obtained,  and  there- 
fore void  as  against  them ;  that  the  same  may  be  set  aside  and 
given  up  to  be  cancelled  ;  and  that  the  defendants  may  be  com- 
pelled to  re-convey  or  release  the  lands  to  the  complainants  :  or 
that  the  same  may  be  sold  under  the  direction  of  the  court,  and, 
after  allowing  to  the  defendants  what  may  be  justly  due- them,  if 
any  thing,  that  the  residue  be  distributed  among  the  complain- 
ants according  to  their  respective  rights. 

To  this  bill  the  defendants  have  demurred,  on  the  ground  that 
it  is  simply  what  is  known  by  the  name  of  an  ejectment  bill ; 
that  the  complainants  have  not  shown  the  existence  of  any  im- 
pediment in  the  way  of  a  proceeding  at  law,  for  establishing 
their  title  and  recovering  possession  ;  that  the  remedy  is  at  law ; 
and  that,  not  having  shown  any  right  to  relief  in  this  court,  they 
are  not  entitled  to  a  discovery. 

J.  P.  Jackson,  for  the  demurrants.  The  bill  in  this  case  is, 
substantially,  for  the  recovery  of  land  ;  to  which  the  complain- 
ants claim  title,  as  heirs  of  William  Crane,  deceased.  It  is  what 


JULY  TERM,  1831.  349 


Crane  et  al.  v.  Conklin  et  al. 


is  properly  termed  an  ejectment  bill;  and  may  be  demurred  to 
on  that  ground.  The  title  of  the  heirs  is  a  legal  title,  which 
may  and  ought  to  be  tried  in  a  court  of  law  :  1  Mad.  Ch.  72, 
(2d  Ed.  Hartford,  201);  3  Meriv.  E.^172.  This  court  has  no 
jurisdiction  to  try  the  title  to  lands.  It  cannot  determine  the  va- 
lidity of  a  will,  either  of  real  or  personal  estate :  3  Meriv.  R. 
161.  There  is  no  one  fact  or  circumstance  stated  in  the  bill, 
that  can  bring  this  case  within  any  exception  to  the  general  rule. 
The  bill  does  not  state  any  suit  at  law,  brought  or  intended  to 
be  brought ;  or  pray  the  aid  of  the  court  to  enable  the  complain- 
ants to  assert  their  legal  title.  An  heir  at  law,  out  of  possession, 
is  entitled  to  a  discovery  of  deeds  necessary  to  support  his  legal 
title,  or  to  have  terms  put  out  of  the  way  which  would  impede 
his  recovery  at  law :  3  Mad.  R.  99.  But  this  bill  does  not  seek 
for  title  deeds,  nor  state  any  impediment  to  a  trial  at  law,  or 
that  any  discovery  is  necessary.  If  it  had  charged,  that  the  de- 
fendants had  got  the  title  deeds,  and  mixed  the  boundaries ;  and 
prayed  for  discovery,  possession,  and  an  account;  it  would,  still, 
have  been  liable  to  a  demurrer:  3  Ves.jr.  3.  The  plaintiff  can- 
not come  here  for  the  possession  of  the  title  deeds,  until  after  he 
has  recovered  the  estate  at  law :  3  Mad.  R.  182 ;  Ch.  Wil- 
liamson's Opin.,  Vreeland  el  al.  v.  Demurest  et  al.  (in  this 
court.) 

The  bill  charges  the  receipt  of  rents  and*profits,  and  prays  gen- 
eral relief;  yet  the  heir  cannot  file  a  bill  for  an  account,  unless  he 
states  an  impediment  to  his  recovery  at  law  :  1  Mad.  C.  189.  On 
a  bill  for  tithes  it  is  not  the  practice  to  make  decrees,  except  to  as- 
sist trials  at  law :  1  Mad.  C.  108. 

An  heir  at  law  has  no  equity  except  to  remove  incumbrances 
standing  in  the  way  of  his  legal  title:  4  Ves.jr.  67.  A  bill  by 
an  heir  at  law  out  of  possession,  praying  an  issue,  and  stating  no 
impediment  to  the  assertion  of  his  right  at  law,  would  be  an 
ejectment  bill,  and  not  sustainable  in  this  court:  1  Mad.  R.  110. 
In  the  present  case,  the  complainants  seek  to  establish  their  own 
title,  as  heirs  at  law,  and  to  defeat  that  of  the  defendants,  by  a  de- 
•cree  of  this  court,  without  stating  any  impediment  to  a  recovery  at 
law. 

Intoxication,  or  imbecility  arising  from  it,  are  alleged  in  the 


350  CASES  IN  CHANCERY. 

i 

Crane  et  al.  v.  Conklin  et  al. 

bill  ;  but  it  is  not  stated  that  this  was  brought  about  by  the  defend- 
ants. Without  this,  deeds  obtained  from  a  man  in  that  situation 
will  not,  in  general,  be  relieved  against:  I  Mad.  C.  301;  3  P. 
Wms.  130,  n.  A.;  1  Fonb.  59,  60;  1  Ves.  sen.  19. 

Mere  inadequacy  of  price  is  not  sufficient  to  avoid  a  deed  :  2 
John.  C.  R.  1  ;  14  John.  R.  527:  if  it  was,  it  is  not  sufficiently 
manifest  in  this  case.  A  voluntary  conveyance,  or  conveyance  in 
fraud  of  law,  is  not  a  nullity,  but  binds  parties  and  privies:  3 
Jfason,  378;  Jeremy,  414;  2  Hah.  R.  173. 

Lastly,  it  is  said,  the  consideration  was  not  paid  ;  but  to  avoid  a 
deed  or  other  contract  on  the  ground  of  fraud,  the  fraud  must  be  in 
the  original  transaction,  and  not  subsequent  fraud  :  5  John.  C.  R. 
29,  30. 

We  insist,  that  the  complainants'  bill  contains  no  ground  of 
equity,  to  entitle  them  to  the  aid  of  this  court. 

T.  Frelinghuysen,  contra.  We  contend,  that  this  bill  is  sus- 
tained by  sound  principles  of  equity.  It  presents  the  gross  case, 
of  relations  availing  themselves  of  the  situation  of  the  grantor, 
either  when  he  was  under  the  direct  influence  of  liquor,  or  when 
his  mind  was  greatly  enfeebled  by  a  recent  fit  of  intoxication  ; 
and  obtaining  a  conveyance  of  all  his  real  estate,  on  an  insufficient 
consideration,  (which  was  never  paid,)  in  fraud  of  himself  and  his 
lawful  heirs.  It  seeks  to  set  aside  the  original  conveyance  to 
Conklin  and  Freeman,  and  the  deed  by  them  to  Ward;  and  that 
they  release;  and  if  they  have  advanced  anything  to  William 
Crane,  that  they  may  come  to  an  account,  and  receive  payment  of 
what  may  be  due  to  them  out  of  the  lands. 

1.  In  support  of  this  bill,  a  familiar  principle  of  equity  at  once 
suggests  itself — that  it  affords  a  more  certain,  full  and  complete 
remedy  and  relief,  than  any  proceeding  at  law  ;  and  this  alone  will 
give  jurisdiction  to  the  court :  Mitf.  103,  107.  If  the  complain- 
ants have  title,  in  justice,  (and  the  demurrer  admits  this,)  then  here 
are  two  outstanding  adverse  deeds,  that  we  have  a  right,  in  equity, 
to  put  out  of  the  way,  that  they  shall  not  hang  as  a  cloud  over  our 
title.  And  this  relief  may  be  given,  while  full  justice  is  awarded 
to  the  defendants,  for  any  moneys  advanced  by,  and  fairly  due  to 
them. 


JULY  TERM,  1831.  351 

Crane  et  al.  v.  Conklin  et  al. 

2.  Fraud  in  the  transaction,  is  the  basis  of  our  equity;  that  the 
defendants  took  advantage  of  William  Crane's  situation,  and  thereby 
defrauded'him  o*"  his  property.     The  subsequent  non-fulfilment  of 
the  agreement,  is  not  charged  as  the  ground  of  our  bill;  but  only 
as  confirmatory  of  the  original   design   of  the  defendants,  and   to 
complete  the  history  of  their  misconduct  in  the  matter.     The  charge 
of  fraud,  whether  against  a  deed,  or  any  other  contract,  agreement 
or  assurance,  or  against  a  judgment,  decree,  or  the  probate  of  a 
will,  will  sustain  the  jurisdiction  of  a  court  of  equity  to  question  it, 
and  relieve  against  it:  1  John  C.  R.  402,  Reigal  v.   Wood;  1  Ves. 
sen.  120,  28-1,  289. 

3.  This  court  is  not  called  on  to  try  the  title  to  the  lands  in  ques- 
tion, in  such  a  sense  as  that  the  defendants  can  raise  an  available 
demurrer  to  its  jurisdiction.     We  do  not  seek   to  try  a  legal   title, 
but  to  try  a  fraud  in  obtaining  a  pretended  title.     The  case  admits, 
that  the  deed   was  given  with   all   legal   formalities;  that  it  was 
regularly  signed,  sealed  and  delivered.     But  it  is  insisted,  that 
however  fair  on  its  face,  there  is  a  defect  in  the  procuring  it,  that 
should  in  equity,  avoid  it.     It  is  no  answer,  to  say,  that  if  it  be  a 
fraud,  a  court  of  law  can  try  it;  for  this  only  establishes  a  con- 
current jurisdiction  in  a  legal  tribunal,  but  does  not  exclude  the 
right  of  equity.     Besides,  a  court  of  equity  will  relieve,  where  an 
unconscientious  advantage  has  been  taken  of  a  person's  situation, 
when   the  circumstances  do  not  amount  to  fraud   in  the  contem- 
plation of  a  court  of  law:  14  John.  R.  501  ;  2  Ves.  sen.  155-6  ; 
13   Ves.  jr.  51. 

4.  Although,  according  to  some  decisions,  a  deed  obtained  from 
a  drunken  man  will  not  be  relieved  against ;  yet,  according  to  the 
whole  course  of  decision,  if  the  drunkenness  has  enfeebled  the  mind 
of  the  grantor,  and  a  conveyance  is  obtained  from  him,  and  espec- 
ially by  his  relations,  for  a  small  consideration  ;  equity  will  inter- 
fere:  2  P.  Wms.  203;  3  P.  Wms.  131,  n.  1  ;  2  Ch.   Ca.  103;  4 
£ro.  P.  C.  557 ;  7  Bro.  P.  C.  70. 

5.  It  is  true,  as  urged  by  the  demurrants,  that  equity  does  not 
try  an  issue  of  devi&avit  vel  non.     But  there  is  a  clear  distinction 
between  a  will  and  a  deed  ;  and   the  complainants  have  a  right 
to  come  here,  upon  the  ground  of  fraud  and  imposition,  to  have 


352  CASES  IN  CHANCERY.     . 

Crane  et  al.  v.  Conklin  et  al. 

a  deed  of  conveyance  set  aside  and  delivered  up  to  be  cancelled  ;  2 
Atk.  R.  324 ;  2  Ves.  sen.  627. 

6.  It  is  admitted,  that  mere  inadequacy  of  price  is  not  sufficient 
to  set  aside  a  deed,  unless  it  was  gross  and  palpable.  But  inade- 
quacy, connected  with  fraud,  imposition,  or  oppression  ;  or  with 
an  undue  advantage  taken  of  a  weak  or  a  drunken  man;  or  even  an 
embarrassed  or  distressed  man ;  is  sufficient  to  defeat  any  convey- 
ance. Hence  deeds  obtained  of  clients,  of  wards,  heirs  expectant, 
or  weak  men,  if  there  be  not  full  value  paid,  are  not  sustained  : 
2  John.  C.  23. 

For  these  reasons,  it  is  submitted,  that  the  jurisdiction  of  this 
court  in  this  case  is  fully  established,  and  that  the  demurrer  ought 
to  be  overruled. 

THE  CHANCELLOR.  The  bill  charges  the  fraudulent  procure- 
ment of  a  conveyance  of  real  estate,  and  seeks  that  it  may  be  set 
aside  in  favor  of  the  heirs  at  law. 

Two  questions  are  made  : 

1.  Has  this  court  jurisdiction  to  set  aside  conveyances,  in  favor 
of  the  heirs  at  law  ?     And, 

2.  Does  this  bill  set  out  such  a  case  as  will  authorize  the  court 
to  interfere,  if  it  have  jurisdiction  ? 

It  must  be  admitted  in  this  case,  by  both  parties,  that  an  eject- 
ment might  have  been  brought  for  the  recovery  of  the  possession 
of  this  property,  by  the  heirs  at  law.  There  is  no  legal  impedi- 
ment or  disability  standing  in  the  way  to  prevent  the  institution 
of  such  suit.  The  title  of  the  heirs  is  strictly  a  legal  title,  and 
such  are  properly  asserted  and  maintained  in  courts  of  law.  But 
it  does  not  follow,  that  because  a  party  is  at  liberty  to  resort  to 
an  action  of  ejectment,  therefore  he  has  no  remedy  in  this  court. 
The  principle  is  too  broad,  and  the  practice  of  the  court  is  directly 
against  it.  There  are  many  cases  in  which  the  jurisdiction  of  the 
courts  of  law  and  equity  are  concurrent,  and  the  party  is  at  liberty 
to  seek  relief  in  either. 

Although  an  ejectment  might  have  been  brought  at  law, 
yet  I  cannot  concur  in  the  opinion  of  the  counsel  of  the  de- 
fendants, that  this  is  what  is  technically  termed  an  ejectment 


JULY  TERM,  1831.  353 

Crane  et  al.  v.  Conklin  et  al. 

bill.  Such  a  bill  is  one  brought  simply  for  the  recovery  of  real 
property,  together  with  an  account  of  the  rents  and  profits, 
without  setting  out  any  distinct  and  substantive  ground  of 
equity  jurisdiction.  A  bill  of  this  description  would  be  de-. 
raurrable,  and  could  receive  no  countenance  in  this  court.  It 
is  of  great  importance  in  the  administration  of  justice,  that  the 
principles  of  the  two  courts  should  be  kept  distinct;  and  where 
there  is  no  proper  ground  of  equity,  the  chancery  will  not  inter- 
fere. Thus  in  the  case  of  Loker  v.  Rolle,  3  Vesey,  jr.  4,  cited 
by  the  defendants'  counsel,  the  bill  was  for  a  discovery  and  for 
possession  and  an  account,  stating  that  the  defendant  had  got 
possession  of  the  title  deeds  and  mixed  the  boundaries.  The 
chancellor  was  of  opinion  that  he  had  no  jurisdiction  ;  that  if  the 
complainant  had  filed  his  bill  for  a  discovery  merely,  he  would 
have  been  entitled  to  it,  but  that  there  was  no  equity  in  his  case 
to  entitle  him  to  any  farther  relief.  He  set  out  no  hindrance  or 
impediment  to  his  legal  title,  which  could  be  properly  removed  in 
a  court  of  equity,  nor  any  fraud  which  could  authorize  the  court 
to  assume  jurisdiction.  A  similar  case  is  to  be  found  in  3  Vesey, 
343,  Ryves  v.  Ryves ;  and  the  principle  is  not  confined  to  cases 
of  real  property,  but  extends  to  all  cases  where  the  demand  is 
purely  legal,  and  the  party  can  have  an  adequate  remedy  at  law. 
A  bill  filed  to  recover  the  amount  of  a  total  loss  on  a  policy  of 
insurance,  stating  no  sufficient  ground  of  eijuitable  relief,  was  dis- 
missed with  costs :  1  John.  C.  R.  463. 

But  this  is  a  bill  to  set  aside  a  fraudulent  conveyance,  filed  by 
those  who,  without  the  incumbrance  of  such  conveyance,  are  un- 
doubtedly entitled  ;  and  I  can  entertain  no  question  as  to  the  juris- 
diction. It  is  altogether  different  from  an  ejectment  bill,  and  comes 
within  the  ordinary  and  often-exercised  powers  of  this  court.  It  is 
a  well  settled  principle,  says  Chancellor  Kent,  that  relief  is  to  be 
obtained  in  this  court  not  only  against  writings,  deeds,  and  the 
most  solemn  assurances,  but  against  judgments  and  decrees,  if  ob- 
tained by  fraud  and  imposition :  Reigal  v.  Wood,  1  John.  C. 
R.  406. 

In  Clarkson  v.  Hannay  and  al.,  2  P.  Wms.  203,  a  bill  was 
filed  by  an  heir  at  law,  to  set  aside  a  conveyance  made  by  the 
ancestor.  It  was  made  to  appear  that  the  ancestor  was  a  weak 


354  CASES  IN  CHANCERY.     . 

Crane  et  al.  v.  Conklin  et  al. 

man,  and  easily  to  be  imposed  upon,  and  that  the  consideration 
was  an  annuity  of  twenty  pounds  sterling  per  annum  for  an  in- 
heritance of  forty  pounds  per  annum.  The  court  granted  relief, 
and  ordered  the  estate  re-conveyed,  and  the  writings  delivered  up, 
and  that  the  defendants  should  pay  back  the  amount  of  rent  they 
had  received,  beyond  what  they  had  paid  for  the  annuity.  So  in 
White  v.  Small,  2  Ch.  C.  101,  certain  deeds  conveying  the 
equity  of  redemption  of  certain  premises,  were  ordered  to  be  set 
aside  on  the  ground  of  fraud  and  want  of  consideration.  In 
Evans  v.  Llewellen,  2  Bro.  C.  C.  150,  (better  reported  in 
1  Cox  C.  It.  333,)  the  court  went  so  far  as  to  set  aside  a  deed 
improvidently  obtained  for  an  inadequate  consideration,  though 
no  actual  fraud  appeared  to  have  been  made  use  of.  The  case 
of  Bennet  v.  Vade  and  al.,  decided  by  Ld.  Hardwicke,  2  Atk. 
339,  is  a  strong  case,  and  similar  to  the  present.  The  bill  was 
brought  by  the  plaintiff,  as  heir  at  law  of  Sir  John  Lee,  to  set 
aside  the  conveyance  of  his  estate  to  the  defendant,  suggesting  fraud 
and  imposition,  and  that  Vade  had  an  undue  influence  over  him. 
That  learned  chancellor  had  no  doubt  on  the  subject  of  jurisdiction, 
though  it  came  before  him  incidentally  in  the  cause ;  and  he  not 
only  decreed  that  the  deed  should  be  delivered  up  to  the  plaintiff, 
with  costs,  but  that  the  possession  should  be  delivered  up  immedi- 
ately. In  Cooper's  Eq.  125,  it  is  said  that  the  only  case  in  which 
fraud  cannot  be  relieved  against  in  equity,  concurrently  with  courts 
of  law,  is  the  case  of  fraud  in  obtaining  a  will,  which  if  of  real 
estate,  must  be  in  a  court  of  law,  and  if  of  personal  estate,  is  cog- 
nizable in  the  ecclesiastical  court. 

The  ease  of  Shaftsbury  v.  Arrowsmith,  4  Ves.  65,  cited  by 
the  defendants7  counsel,  in  which  it  is  decided,  that  an  heir  at 
law  has  no  equity  except  to  remove  incumbranees  in  the  way  of 
his  legal  rights,  does  not  reach  the  principles  of  the  bill  no.w  un- 
der consideration.  It  was  a  n>ere  question  of  title,  and  there  was 
nothing  in  it  involving  any  principle  of  equity.  The  same  re- 
mark may  be  made  to  the  case  of  Crow  and  al.  v.  Tyrrel,  3  Mad, 
Rep.  99:  an  heir  out  of  possession  eame  into  court  praying  im- 
mediate relief,  by  having  the  possession  of  the  property  delivered 
np  to  him,  and  also  the  title  deeds  by  which  the  estate  was  held. 
The  vice-chancellor  held,  that  if  he  came  into  chancery  simply 


JULY  TERM,  1831.  355 


Crane  et  al.  v.  Conklin  et  al. 


for  the  possession  of  the  property,  the  bill  would  have  been  clear- 
ly deraurrable:  that  he  prayed  for  a  delivery  of  the  title  deeds 
did  not  help  him,  for  the  jurisdiction  of  the  court  in  regard  to 
the  delivery  of  the  title  deeds,  was  confined  to  the  person  having 
possession  of  the  estate.  If  the  party  recovered  the  possession  of 
the  estate  at  law,  he  might  then  come  into  equity  for  the  possession 
of  the  title  deeds. 

But  it  is  to  be  observed,  that  in  those  cases  the  plaintiffs  did  not 
come  into  court  complaining  of  conveyances  fraudulently  and  im- 
properly obtained,  and  praying  to  be  relieved  from  their  operation. 
The  relief  sought  was  of  a  character  altogether  distinct.  The 
correctness  of  those  decisions  is  not  called  in  question,  but  they 
have  no  relation  to  the  case  now  before  the  court. 

Entertaining  no  doubt  as  to  this  part  of  the  case,  I  will  merely 
refer  to  some  authorities  to  be  found  in  3  Cox,  P.  Wrns.  131,  in 
notis,  and  to  a  late  and  valuable  treatise  on  the  jurisdiction  of 
this  court,  by  Jeremy,  pp.  485-6. 

The  second  question  is,  whether  the  bill  discloses  such  a  case 
of  fraud  as  will  authorize  this  court  to  interfere  ? 

Crane  is  represented  by  the  bill,  as  we  have  already  seen,  to 
have  been  for  eight  or  ten  years  habitually  addicted  to  intempe- 
rance:* that  during  the  months  of  January  and  February  he  was 
"almost  incessantly  and  uninterruptedly  .under  the  influence  of 
liquor  to  such  a  degree  as  to  be  wholly  incapable  of  business:" 
that  when  he  refrained  for  a  few  days  from  immoderate  drinking, 
his  debility  of  body  and  mind  was  so  great,  as  to  render  him  in- 
competent to  the  rational  transaction  of  any  business  :  that  when  he 
was  either  in  a  state  of  actual  intoxication,  or  so  enfeebled  or  debil- 
itated in  mind,  from  the  indirect  influence  of  a  long  fit  of  intoxi- 
cation, from  which  he  was  just  then  recovering,  and  while  he  was 
legally  incompetent  to  make  any  disposition  of  his  property,  the 
defendants  fraudulently  and  most  unconscientiously,  and  without 
any,  or  if  any,  a  totally  inadequate  and  mere  colorable  consid- 
eration, procured  from  him  the  said  conveyance.  It  is  not  stated 
that  the  drunkenness,  and  consequent  disability,  originated  in 
any  acts  of  the  defendants  ;  no  management  or  contrivance  of 
that  kind  is  charged  against  them.  The  question  is,  whether, 
under  such  circumstances,  the  deed  can  be  relieved  against. 


356  CASES  IN  CHANCERY. 

Crane  et  al.  v.  Conklin  et  al. 

Courts  of  equity  have  been  liberal  in  protecting  against  the 
consequences  of  fraud,  those  who  from  weakness  and  imbecility 
are  most  liable  to  imposition,  and  also  those  who  from  their  rela- 
tive situation  are  peculiarly  liable  to  be  influenced  by  artful  and 
designing  persons  around  them.  In  carrying  out  their  healthful 
principles,  they  have  proved  themselves  the  guardians  of  infan- 
cy, the  protectors  of  the  innocent  and  unwary,  and  the  fearless 
and  successful  exposers  of  hidden  machination  and  secret  fraud. 
If  there  has  been  a  suppression  of  the  truth,  or  the  suggestion  of 
a  falsehood,  whereby  -the  party  is  circumvented  and  deceived, 
equity  will  relieve  against  it.  Where  an  undue  advantage  has 
been  taken  of  the  weakness  or  necessity  of  the  party,  or  of  any. 
situation  in  which  he  is  placed,  rendering  him  peculiarly  liable 
to  impositions,  this  court  will  interfere.  It  goes  upon  the  safe 
principle  of  protecting  those  who  are  not  able  to  protect  them- 
selves. 

It  has,  nevertheless,  been  made  a  question,  how  far  any  im- 
provident act,  caused  by  drunkenness  or  intoxication,  may  be 
relieved  against;  and  it  has  been  supposed  by  some,  that  if  the 
intoxication  was  voluntary  and  not  procured,  that  the  party  was 
without  remedy.  Thus  in  Johnson  v.  Madlicott,  decided  at  the 
rolls  by  Sir  Jos.  Jekyll,  in  1734,  cited  in  3  P.  Wins.  130,  it 
was  expressly  stated,  that  the  having  been  in  drink  is  not  any 
reason  to  relieve  a  man  against  any  deed  or  agreement  gained 
from  him  when  in  that  situation,  for  that  were  to  encourage 
drunkenness:  otherwise,  if  through  the  management  or  contri- 
vance of  him  who  gained  the  deed,  &c.  the  party  from  whom 
such  deed  has  been  gained,  was  drawn  into  drink.  So,  too,  Ld. 
Coke  says:  "Although  he  who  is  drunk  is  for  the  time  non  com- 
pos mentis,  yet  his  drunkenness  does  not  extenuate  his  offence, 
nor  turn  to  his  avail ;  but  it  is  a  great  offence  in  itself,  arid  there- 
fore aggravates  his  offence,  and  doth  not  derogate  from  the  act 
•which  he  did  at  the  time."  This  doctrine  of  the  ancient  common 
law  is  too  harsh  to  be  generally  useful,  and  it  contrasts  rather 
unfavorably  with  the  milder  and  more  rational  principles  of  the 
civil  law.  "  It  is  evident,  (says  Pothier,)  that  ebriety,  when  it 
is  such  as  to  take  away  the  use  of  reason,  renders  the  person 
who  is  in  that  condition,  while  it  continues,  unable  to  make  a 


JULY  TERM,  1831.  357 

Crane  et  al.  v.  Conklin  et  al. 

contract,  since  it  renders  him  incapable  of  assent."  Traite  des 
Obligat.  pt.  I,  c.  1,  s.  1,  art.  4.  The  case  at  the  rolls  in  1734, 
already  mentioned,  was  founded  on  the  principles  of  the  strict  rule 
of  the  common  law.  In  1747,  the  question  was  made  before  Ld. 
Hardwicke,  whether  it  was  sufficient  to  set  aside"  an  agreement, 
that  one  of  the  parties  was  drunk  at  the  time.  That  learned  chan- 
cellor thought  it  was  not,  unless  some  unfair  advantage  was 
taken,  which  did  not  appear  in  that  case  :  Cory  v.  Cory,  1  Ves. 
sen.  19.  This  decision  was  a  departure  from  the  old  rule,  and 
grew  out  of  better  conceptions  of  equity.  Instead  of  saying  to 
the  wretched  victim  of  intemperance,  that  the  avenues  not  only 
of  law,  but  of  equity  were  closed  against  him,  and  that  he  was 
to  be  left  as  an  outlaw  in  society,  a  prey  to  the  cunning  and  cu- 
pidity of  the  spoiler;  it  extended  to  him  the  just  protection  of  the 
court,  not  for  the  purpose  of  setting  aside  his  contract  on  the 
ground  of  his  infirmity,  or  crime,  but  for  the  purpose  of  looking 
into  his  transactions,  to  see  whether  any  advantage  had  been  taken 
of  his  unhappy  situation.  It  would  not  favor  ebriety,  but  at  the 
same  time  would  not  permit  it  to  be  taken  advantage  of  with  im- 
punity. The  good  sense  of  this  principle  has  commended  itself  to 
every  court,  and  especially  to  the  courts  of  equity.  Hence  it  has 
become  the  settled  rule  of  the  court,  that  it  will  not  interfere  to 
assist  a  person  on  the  ground  of  intoxication  merely  ;  but  if  any 
unfair  advantage  has  been  taken  of  his  situation,  it  will  render  him 
all  proper  aid  :  Cooke  v.  Clayworth,  18  Ves.  12. 

The  bill  before  me  does  not  seek  relief,  on  the  simple  ground 
of  intoxication.  It  charges  expressly,  that  undue  advantage  was 
taken  of  the  situation  of  the  grantor,  and  that  the  deed  was  frau- 
dulently obtained.  As  evidence  of  the  fraud,  it  relies  upon  the 
inadequacy  of  the  price,  and  states  that  even  that  price  was  not 
paid.  To  this  it  has  been  answered,  that  inadequacy  of  price  is 
not  of  itself  evidence  of  fraud,  and  can  never  be  the  ground  of 
setting  aside  a  deed,  unless  accompanied  with  fraud  or  misrepre- 
sentation. But  this  is  only  where  the  party  is  able  to  contract. 
In  the  case  of  Reynolds  v.  Wall,  1  Wash.  Rep.  16J,  it  was 
held,  that  where  the  party  was  intoxicated,  inadequacy  of  price 
was  direct  evidence  of  fraud  ;  and  I  think  there  can  be  no  doubt 
of  the  correctness  of  the  decision.  It  is  conceded,  that  the  fact 


358  CASES  IN  CHANCERY. 

Miller  et  al.  v.  Ford  et  al. 

of  the  price  not  being  paid,  is  no  ground  to  set  aside  the  deed. 
The  fraud  must  be  in  the  original  transaction  or  contract,  not  in 
the  non-fulfilment  of  the  contract.  If  the  original  transaction 
was  valid  at  the  time,  it  is  not  rendered  invalid  by  any  subsequent 
act  or  omission  of  the  defendants.  The  fact,  nevertheless,  is  well 
charged  ;  for  although  it  does  not  change  the  nature  of  the  trans- 
action, it  may,  if  proved,  be  strong  testimony  to  show  its  real 
character :  5  Peters,  279,  Cathcart  and  al.  v.  Robinson. 

Upon  the  whole  case,  without  going  into  any  calculation,  or  giv- 
ing any  opinion  as  to  the  adequacy  of  the  price,  I  am  fully  satisfied 
that  this  bill  is,  upon  the  face  of  it,  clearly  within  the  jurisdiction 
and  principles  of  this  court,  and  that  the  defendants  must  be  put  to 
their  answer. 

Let  the  demurrer  be  overruled,  with  costs. 

CITED  in  Pittenger  v.  Pittenger,  2  Or.  Ch.  161 ;  Hutchinson  v.  Tindall,  Id.  361 : 
Kloepping  v.  Stdlmacher,  6  C.  E.  Or.  329. 


ELIPHALET  MILLER  AND  MARY  HIS  WIFE,  ISAAC  B.  MILLER, 
ET  AL.  v.  CHARLES  FORD,  AND  THE  ADMINISTRATORS  OF 
SYLVANUS  BONNELL,  DECEASED. 


In  a  suit  in  equity,  upon  a  mortgage  or  other  instrument  tainted  with  usury,  the 
defendant  may  set  up  the  usury,  and,  if  he  can  prove  the  facts,  may  avoid 
the  instrument,  according  to  the  letter  of  the  statute. 

But  when  a  party  goes  into  court,  seeking  relief  from  the  operation  of  an  usuri- 
ous instrument,  he  must  offer  to  do  what  equity  and  good  conscience  requires 
at  his  hands;  that  is,  to  pay  the  sum  actually  due:  and  if  he  omit  to  make 
such  offer,  the  defendant  may  demur. 

A.  mortgaged  five  lots  of  land  to  B.  to  secure  payment  of  three  thousand  se- 
ven hundred  and  fifty  dollars,  in  seven  annual  instalments.  After  this,  he 
conveyed  the  mortgaged  premises,  and  one  other  lot,  to  C.,  in  trust,  to 
receive  and  apply  the  rents  and  profits,  and  in  case  of  deficiency  to  raise 
money  by  mortgage,  to  pay  off  the  incumbrance,  and  after  satisfying  that, 
to  pay  the  net  rents  and  profits  to  the  grantor's  daughter  M.  (wife  of  E.  M.) 
for  her  support,  until  her  youngest  child  attained  twenty-one  years  of  age, 
and  then,  in  trust,  to  convey  the  premises  to  M.  and  her  children  then  liv- 
ing, as  tenants  in  common ;  upon  their  paying,  or  securing,  a  legacy  of 
one  thousand  dollars  to  J.  B.  F.  afterwards  mortgaged  the  trust  premises 
to  B.  to  secure  the  farther  sum  of  three  thousand  six  hundred  and  twelve 


JULY  TERM,  1831.  359 

Miller  et  al.  v.  Ford  et  al. 

dollars  and  ninety  cents.  Upon  the  death  of  B.  his  administrators  filed  aa 
original  bill  against  A.  and  F.  for  the  foreclosure  of  these  mortgages.  Upon 
this  bill,  after  a  demurrer  overruled,  there  was  a  decree,  pro  confesso,  and 
order  of  reference.  Pending  the  reference,  the  cestuis  que  trust  filed  the 
present  bill,  against  F.  and  the  administrators  of  B.  This  bill  charges,  that" 
B.  with  notice  of  the  trust,  fraudulently  combined  with  F.  to  take  tbe  second 
mortgage.,  for  their  joint  and  equal  benefit.  That  all  the  money  ad- 
vanced by  B.  (on  this  mortgage)  was  one  thousand  seven  hundred  and  fifty 
dollars,  of  which  a  great  part  was  misapplied  by  F.  That  only  four  hun- 
dred and  twenty-five  dollars  (retained  by  B.  for  interest)  went  to  discharge 
the  prior  .incumbrance;  all  which  was  known  to  B.  That  by  connivance 
of  B.  and  F.,  one  thousand  seven  hundred  and  fifty  dollars  was  included  in 
the  mortgage,  for  money  that  F.  pretended  to  borrow  of  himself,  as  trus- 
tee; and  that  one  hundred  and  twelve  dollars  and  ninety  cents  was  included 
in  the  mortgage,  over  the  sum  pretended  to  be  loaned  :  in  consequence  of 
which  the  mortgage  was  usurious  and  void.  That  the  present- complainants 
were  not  made  parties  to,  or  acquainted  with  the  proceedings  had  on  the 
original  bill.  That  the  annual  value  of  the  premises  was  one  thousand  two 
hundred  and  seventy-five  dollars,  which  had  been  received,  but  not  paid 
over  or  accounted  for  by  F.  The  prayer  of  the  bill  is,  that  farther  pro- 
ceedings on  the  original  suit  may  be  suspended  :  that  the  mortgage  from 
F.  to  B.  may  be  declared  fraudulent  and  usurious,  and  be  set  aside  and  can- 
celled ;  or  if  any  part  of  the  money  was  borrowed  to  pay  the  incumbrance,  it 
may  be  so  applied  :  and  that  an  account  may  be  taken  of  the  rents  and  profits, 
and  the  same  may  be  appropriated  to  the  extinguishment  of  the  first  mort- 
gage, and  the  balance,  if  any,  paid  over  to  the  said  M.  The  bill  being 
verified  by  affidavit,  an  order  was  made,  in  the  nature  of  an  injunction, 
restraining  the  complainants  from  proceeding  in  the  original  suit  until  far- 
ther order.  The  defendants  appeared ;  and  to  ^hat  part  of  the  bill  which 
charges,  that  the  mortgage  from  F.  to  B.  is  usurious,  and  seeks  relief  on 
that  head,  demurred;  upon  the  ground,  that  the  complainants  have  not 
paid  into  court  the  amount  admitted  to  have  been  advanced  upon  the  secu- 
rity of  the  mortgage,  nor  offered  themselves  ready  to  pay  the  same.  The 
demurrer  allowed. 

If  the  complainants  had  been  brought  in  as  parties  defendants  to  the  original 
bill,  they  might  have  set  up  the  defence  of  usury,  and  have  relied  on  the  let- 
ter of  the  statute.  But  coming  in  as  complainants,  and  setting  up  the  defence 
of  usury,  the  general  rule  (that  they  must  offer  to  pay  the  amount  actually 
due)  applies  to  them. 

The  complainants  in  this  case  were  not  obliged  to  tender  any  precise  amount. 
Part  of  the  money  secured  by  the  second  mortgage,  was  properly  applied 
to  discharge  the  interest  on  the  first ;  thus  far  the  second  mortgage  is  good. 
If  the  complainants  had  offered  to  pay  that  amount,  with  so  much  more  aa 
might  appear  to  be  due  after  the  question  of  fraud  is  investigated,  they  would 
have  done  what  is  equitable,  and  both  defences  would  then  have  been  open 
to  them. 


060  CASES  IN  CHANCERY. 

Miller  et  al.  v.  Ford  et  al. 

The  complainants'  offering  to  pay  the  amount  supposed  to  be  due,  would  not 
have  been  a  waiver  of  the  fraud. 

Where  a  party  is  not  entitled  to  relief,  he  is  not  entitled  to  discovery.  The 
bill,  in  this  case,  is  for  discovery  and  relief;  the  demurrer  is  to  both  ;  this 
is  Aot  too  broad :  you  cannot  demur  to  the  discovery  unless  you  also  demur 
to  the  relief. 

The  order  to  stay  proceedings  in  the  former  suit,  is  correct.  This  court  may  con- 
trol the  proceedings  of  other  tribunals,  for  the  purpose  of  administering  more 
complete  justice;  it  is  one  of  its  most  valuable  powers:  it  may  control  its 
own  proceedings  to  attain  the  same  object. 

Notwithstanding  an  answer  was  put  in  by  the  administrators  of  B.,  some  of  the 
most  important  charges  of  the  bill  remaining  unanswered ;  they,  being  merely 
representatives,  having  no  personal  knowledge  of  the  facts,  and  therefore  not 
admitting* or  denying  them,  the  order  to  stay  proceedings  was  continued. 


The  bill  in  this  case  states,  that  about  January,  1829,  Foster 
Day  and  Nancy  Bonnell,  administrators  of  Sylvanus  Bonnell, 
deceased,  exhibited  their  bill  in  this  court  against  Charles  Ford 
and  Isaac  Beach  and  Mary  his  wife,  to  foreclose  the  equity  of 
redemption  of  and  in  certain  mortgaged  premises,  consisting  of 
five  lots  in  the  county  of  Morris.  There  were  two  mortgages  on 
the  property :  the  first  one  was  given  by  Isaac  Beach  and  Mary 
his  wife  to  said  Bonnell,  on  or  about  the  10th  day  of  October, 
1822,  to  secure  the  payment  of  three  thousand  seven  hundred 
and  fifty  dollars.  Of  this  sum  five  hundred  dollars  was  payable 
in  five  years,  five  hundred  dollars  in  seven  years,  five  hundred 
dollars  in  eight  years,  five  hundred  dollars  in  nine  years,  five 
hundred  dollars  in  ten  years,  five  hundred  dollars  in  eleven  years, 
and  seven  hundred  and  fifty  dollars  in  twelve  years  from  the  date 
of  the  bond.  The  second  mortgage  was  given  by  Charles  Ford 
and  wife  to  the  said  Sylvanus  Bonnell,  for  the  sum  of  three  thou- 
sand six  hundred  and  twelve  dollars  and  ninety  cents,  and  was 
dated  on  the  1st  of  December,  1824.  On  the  IQth  Augmt, 
1824,  and  before  the  making  of  the  second  mortgage,  Beach  and 
wife  conveyed  the  premises  covered  by  the  first  mortgage,  and 
one  additional  tract,  to  Charles  Ford,  in  fee  simple,  in  trust, 
however,  among  other  things  to  raise  money  by  mortgage  or 
otherwise.  The  second  mortgage,  so  given  as  aforesaid  by 
Charles  Ford,  was  upon  the  premises  originally  mortgaged,  and 
also  upon  the  additional  tract,  so  conveyed  in  trust  as  aforesaid. 


JULY  TERM,  1831.  361 

Miller  et  al.  v.  Ford  et  al. 

Part  of  the  mortgage  money  becoming  due  and  remaining 
unpaid,  and  Sylvanus  Bonnell  having  departed  this  life,  his  ad- 
ministrators filed  their  bill  as  above  mentioned,  for  a  foreclosure 
and  sale  of  the  mortgaged  premises.  The  defendants  filed  a 
lemurrer  to  the  bill,  which  not  having  been  set  down  for  argu- 
ment, was  overruled;  and  in  October,  1829,  the  bill  was  taken 
as  confessed,  and  there  was  an  order,  as  is  usual  in  cases  where 
the  whole  of  the  mortgage  money  is  not  due,  referring  it  to  a 
master  to  take  an  account.  Pending1  this  order  of  reference,  the 
complainants  in  this  suit  filed  their  bill,  setting  forth,  substan- 
tially, the  following  facts : — That  the  said  Isaac  Beach  was  an 
aged  and  infirm  mau,  and  having  considerable  property  to  dis- 
pose of,  was  desirous  to  provide  for  the  benefit  and  support  of 
his  daughter  Mary,  being  the  wife  of  Eiiphalet  Miller,  and  one 
of  the  complainants,  in  such  a  manner  as  to  place  her  support 
and  maintenance  beyond  the  control  of  her  husband,  who  was 
insolvent,  made  the  conveyance  aforesaid  of  the  said  six  several 
lots,  to  the  said  Charles  Ford,  in  trust,  as  follows :  that  the  said 
Charles  Ford  should  lease  out  the  said  premises,  or  any  part 
thereof,  and  receive  the  rents  and  profits,  and  after  deducting 
taxes,  repairs,  insurances  and  reasonable  expenses,  should  ap- 
propriate yearly  such  sum  as  might  remain,  to  pay  off  and  dis- 
charge the  incumbrances  then  upon  the  property;  and  in  case 
the  rent  should  be  insufficient  to  pay  off  the  incumbrances,  then 
in  trust  to  raise  by  mortgage  such  sum  or  sums  of  money  as  might 
be  necessary  to  pay  off  and  remove  the  same ;  and  afterwards  to 
take  and  receive  the  rents,  issues  and  profits,  and  pay  over  the 
same  to  the  said  Mary  Miller  for  her  support  and  maintenance  : 
and  upon  this  further  trust  and  confidence,  that  when  the  young- 
est child  of  the  said  Mary  should  arrive  to  twenty-one  years  of 
age,  that  then  the  said  Charles  should  convey  the  said  premises 
to  the  said  Mary  Miller  and  to  each  and  every  of  her  children 
then  living,  as  tenants  in  common,  upon  their  paying  to  Isaac 
Beach  one  thousand  dollars,  or  securing  it  upon  bond  and  mort- 
gage. That  Ford  took  upon  himself  this  trust;  and  that  at  this 
time  there  were  no  incumbrances  on  the  property  except  the  mort- 
gage from  Beach  to  Bonnell  for  three  thousand  seven  hundred  and 
fifty  dollars. 


362  CASES  IN  CHANCERY. 

Miller  et  al.  v.  Ford  et  al. 

The  bill  then  further  charges,  that  Sylvanus  Bonnell,  well 
knowing  of  the  deed  of  trust  and  its  conditions,  fraudulently  com- 
bined with  Ford  to  take  a  mortgage  from  him  on  this  trust  pro- 
perty, for  the  joint  and  equal  benefit  of  himself  and  Ford,  and  that 
one  half  of  the  money  to  be  secured  by  the  mortgage  should  belong 
to  and  be  for  the  benefit  of  Ford  ;  that  upon  this  understanding 
and  agreement  the  said  mortgage  secondly  above  mentioned  was 
given  by  Ford  to  Bonnell  for  three  thousand  six  hundred  and 
twelve  dollars  and  ninety  cents. 

And  it  further  charges,  that  Ford  never  did  borrow  this  sum 
of  Bonnell,  but  that  all  the  money  he  ever  advanced  and  intended 
to  secure  by  the  mortgage  was  one  thousand  seven  hundred  and 
fifty  dollars;  part  of  which  was  wrongfully  retained  by  him  to 
answer  a  certain  claim  against  one  Mahlon  Bonnell,  and  other  part 
to  answer  a  certain  claim  against  Eliphalet  Miller,  both  of  whom 
are  insolvent.  That  eight  hundred  and  twenty-four  dollars  and 
fifty  cents  of  said  sum  was  paid  by  said  Bonnell  to  Ford,  and  by 
Ford,  with  the  knowledge  of  Bonnell,  paid  to  Eliphalet  Miller, 
who  was  at  that  time  insolvent,  and  appropriated  the  money  to 
his  own  use.  That  no  part  of  the  one  thousand  seven  hundred 
and  fifty  dollars  went  to  discharge  the  incumbrance,  except  four 
hundred  and  twenty-five  dollars,  which  was  retained  by  the  said 
Sylvanus  on  account  of  interest;  and  that  all  this  was  known  to 
Bonnell. 

And  it  is  further  charged,  that  by  the  connivance  of  Bonnell  and 
Ford  the  trustee,  the  sum  of  one  thousand  seven  hundred  and  fifty 
dollars  is  included  in  the  mortgage  for  money  that  Ford  pretended 
to  borrow  of  himself  as  such  trustee,  no  part  of  which  was  appro- 
priated to  the  paying  off  of  the  only  incumbrance  there  was  on  the 
property.  That  there  was  included  in  the  said  mortgage  one  hun- 
dred and  twelve  dollars  and  ninety  cents  over  and  above  the  sum 
pretended  to  be  loaned,  in  consequence  of  which  the  said  mortgage 
is  usurious  and  void. 

It  is  also  further  charged,  that  the  premises  were  of  great  value, 
consisting  of  a  flour  mill,  saw  mill  and  paper  mill,  and  of  the 
yearly  value  of  one  thousand  two  hundred  and  seventy-five  dol- 
lars which  had  been  annually  received  by  the  said  Charles  Ford  ; 
that  no  part  of  the  same  had  been  received  by  the  said  Mary  Miller 


JULY  TERM.  1831.  363 

Miller  et  al.  v.  Ford  et  al. 

for  her  support  and  maintenance,  and  that  the  said  Charles  Ford 
refused  to  give  any  satisfactory  account.  That  the  complainants 
in  this  cause  were  not  made  parties  defendants  in  the  suit  brought 
by  the  administrators  of  Bonnell  to  foreclose  and  sell  the  mort- 
gaged premises,  and  had  no  knowledge  of  the  suit  except  from 
information  derived  from  Charles  Ford,  who  informed  them  at 
the  same  time  that  he  would  put  a  stop  to  the  proceedings,  and 
make  a  compromise  with  the  administrators  of  Bonnell;  and  they 
supposed  it  was  effected,  and  knew  nothing  to  the  contrary,  until 
they  understood  that  a  decree,  ordering  the  bill  to  be  taken  as  con- 
fessed, had  been  entered.  That  the  said  Charles  Ford,  being 
inquired  of  as  to  the  matter,  said,  that  he  wanted  to  get  rid  of  the 
trust,  and  would  purchase  in  the  property  and  then  manage  it  as 
he  pleased.  And  it  is  further  charged  that  this  is  in  accordance 
with  the  fraudulent  agreement  originally  entered  into  between  the 
said  Charles  Ford  and  the  said  Sylvanus  Bonnell ;  the  ultimate 
object  of  which  was  to  promote  a  sale  of  the  property  under  color 
of  law,  and  purchase  the  same  for  their  joint  benefit,  to  the  utter 
destruction  of  the  complainants'  rights,  and  contrary  to  equity  and 
good  conscience. 

The  relief  prayed  for  is,  that  all  further  proceedings  in  the  origi- 
nal suit  may  be  suspended,  and  that  the  indenture  of  mortgage 
from  Ford  to  Bonnell  may  be  declared  fraudulent  and  usurious, 
and  that  the  same  may  be  set  aside  and  delivered  up  to  be  can- 
celled ;  or  if  any  part  of  it  be  actually  due,  and  was  borrowed  for 
the  purpose  of  paying  off  incumbrances,  that  it  be  applied  to  pay- 
ing off  the  said  first  mortgage;  and  that  an  account  may  be  taken 
of  the  rents  and  profits  accrued  since  the  execution  of  the  deed  of 
trust,  and  that  the  same  may  be  appropriated  to  the  extinguishment 
of  the  first  mortgage,  and  the  balance  paid  over  to  the  said  Mary 
Miller,  &e.  &c. 

The  facts  charged  in  the  bill  being  verified  by  affidavit  in  the 
usual  way,  an  order  was  issued  out  of  this  court  in  the  nature  of  an 
injunction,  restraining  the  complainants  in  the  original  suit  from 
proceeding  therein  until  the  further  order  of  the  court. 

The  defendants  have  appeared ;  and  to  all  that  part  of  the  bill 
which  charges,  that  the  mortgage  given  by  Charles  Ford  to  Syl- 
vanus Bonnell,  was  usurious,  and  therefore  avoid,  and  seeks  relief 


364  CASES  IN  CHANCERY. 

Miller  et  al.  v.  Ford  et  al. 

because  of  the  alleged  usury,  they  d«mur,  on  the  ground  that  the 
complainants  have  not  paid  into  court  the  amount  admitted  to 
have  been  advanced  upon  the  security  of  the  said  mortgage,  nor 
have  they  proffered  themselves  ready  to  pay  such  amount.  There 
was  also  notice  given  of  a  motion  to  discharge  the  order  staying 
proceedings  in  the  original  suit;  the  argument  of  which  came  on 
with  the  demurrer,  by 

IF.  Pennington  and  I.  H.  Williamson,  for  the  complainants  in 
the  original  bill,  and  defendants  in  the  cross-bill,  in  support  of  the 
demurrer. 

E.  Van  Arsdale,  sen.  for  complainants  in  cross-bill. 

Cases  cited  :— 1  Fonb.  E.  25,  (h.) ;  2  Ves.  sen.  489  ;  2  Bro.  C. 
E.  649;  4  Bro.  C.  R.  436  ;  IGVes.jr.  124;  15  John.  R.  555;  5 
John.  C.  R.  142,  436;  3  Ves.  and  B.  R,  14;  2  Bro.  C.  R.  124; 
Forrest.  Ex.  R.  129 ;  3  Merriv.  R.  161  ;  I  John.  R.  5HO  ;  Eden  on 
I-nj.  16,  89  ;  1  Sch.  and  L.  115,  142,  310  ;  Jeremy  E.  503;  2 
Bro.  C.  R.  641  ;  Ca.  T.  Talb.  38;  4  John.  C.  R.  125;  2  John.  C. 
R.  148. 

THE  CHANCELLOR.  The  question  is  upon  the  demurrer :  is 
it  rightfully  taken  ? 

The  general  doctrine  on  the  subject  is  this  :  where  a  suit  in 
equity  is  brought  upon  a  mortgage  or  other  instrument  tainted 
with  usury,  the  defendant  may  set  up  the  usury,  and  if  he  can 
prove  the  facts,  may  avoid  the  instrument,  according  to  the  letter 
of  the  statute.  But  where  a  party  goes  into  a  court  of  equity, 
seeking  relief  from  the  operation  and  effect  of  an  usurious  instru- 
ment, he  must  offer  to  do  what  equity  and  good  conscience  re- 
quire at  his  hands,  that  is,  to  pay  the  sum  actually  due  ;  and  if 
he  omit  to  make  such  offer  the  defendant  may  demur:  1  Fonb. 
25.  Ld.  Hardwicke  says,  in  the  case  of  Hankie  v.  The  Royal 
Exchange  Assurance  Company,  1  Ves.  sen.  3  ^7,  that  whoever 
brings  a  bill  in  the  case  of  usury,  must  submit  to  pay  principal 
and  interest  due,  on  which  the  courts  lay  hold  and  will  relieve  ; 
and  he  lays  down  the  same  principle  in  ex  parte,  Skip,  2  Ves. 
489.  Ld.  Thurlow  lays  it  down  as  a  universal  rule,  Sctft  v. 


JULY  TERM,  1831.  365 


Miller  et  al.  v.  Ford  et  al. 


Nesbitt,  2  S.  C.  C.  649;  2  Cox,  183:  and  in  Mason  v.  Gar- 
den, 4  B.  C.  C.  436,  which  was  the  case  of  a  cross-bill,  he  says, 
that  the  bill  calls  upon  the  defendant  to  give  up  the  security;  it 
admits  the  principal  due,  and  therefore  ought  to  offer  payment. 
So  Ld.  Eldon,  in  ex  parte  Scrivener,  3  Ves.  and  Beam.  14,  holds 
the  doctrine  to  be,  that  at  law  you  must  make  out  the  charge  of 
usury,  and  in  equity  you  cannot  come  for  relief  without  offering  to 
pay  what  is  really  due.  "The  equity  cases/'  says  Ch.  Kent, 
"  speak  one  uniform  language ;  and  I  do  not  know  of  a  case  in 
which  relief  has  ever  been  afforded  to  a  plaintiff,  seeking  relief 
against  usury  by  bill,  upon  any  other  terms."  Fanning  v.  Dan- 
ham,,  5  Johns.  C.  R.  122.  The  same  principle  is  recognized  in 
1  Paige  C.  R.  429,  Fulton  Bank  v.  Beach:  and  in  Morgan 
v.  Schermerhorn,  1  Paige,  544,  it  is  held  that  a  party  who  comes 
to  chancery  for  relief  against  an  usurious  contract,  must  pay  or 
offer  to  pay  the  amount  actually  due,  before  he  will  be  entitled  to 
an  injunction  to  restrain  proceedings  at  law  :  and  in  this  court,  in 
the  case  of  Biitton  v.  Lenox,  decided  by  Ch.  Williamson,  in  Janu- 
ary term,  1828,  the  principle  is  fully  and  ably  sustained. 

Unless,  therefore,  there  is  something  peculiar  in  this  case,  to 
take  it  out  of  the  general  principle,  the  demurrer  must  be  al- 
lowed. Some  things  have  been  urged  which  deserve  attention. 
And  in  the  first  place,  it  was  argued  thafr^not  only  usury,  but 
fraud  is  charged  as  against  the  second  mortgage,  and  that  if  the 
complainants  were  to  offer  to  pay  the  amount  supposed  to  be  due, 
it  would  be  a  waiver  of  the  fraud  ;  that  in  truth  they  are  unable 
to  admit  any  thing  due.  I  apprehend  this  to  be  a  mistake.  The 
complainant  is  not  obliged  to  tender  any  precise  amount.  It  ap- 
pears that  a  part  of  the  money  secured  by  the  mortgage  for  the 
benefit  of  Bonnell,  was  actually  paid,  and  properly  appropriated  to 
discharge  the  interest  on  the  first  mortgage.  Thus  far,  undoubt- 
edly, the  mortgage  is  good.  If,  then,  the  complainants  had  offered 
to  pay  that  amount,  together  with  so  much  more  as  might  appear 
to  be  bona  fide  due  after  the  question  of  fraud  should  have  been 
investigated,  I  should  say  they  had  done  what  was  equitable,  and 
that  both  defences  would  have  been  open  to  them. 

But  it  is  said  the  demurrer  is  too  broad ;  it  should  have  been 
only  to  the  discovery,  and  not  to  the  relief.  I  apprehend  the  law 


36G  CASES  IN  CHANCERY. 

Miller  et  al.  v.  Ford  et  al. 

differently.  When  a  party  is  not  entitled  to  relief,  he  is  not  en- 
titled to  a  discovery.  The  ancient  practice  is  stated  to  have  been 
otherwise,  and  it  was  not  until  the  days  of  Ld.  Thurlow  that 
the  present  practice  was  established.  In  Morgan  v.  Harris,  2 
Bro.  C.  C.  124,  that  judge  says,  "you  cannot  demur  to  a  disco- 
very, unless  you  demur  to  the  relief:  for  then  you  do  not  demur 
to  the  thing  required,  but  you  demur  to  the  means  by  which  it  is 
to  be  obtained."  The  rule  was  followed  up  by  him,  in  Fry  v. 
Penn,  2  Bro.  C.  C.  280,  and  Price  v.  James,  2  Bro.  C.  C.  319, 
and  also  in  Walkms  v.  Bush,  2  Dick.  663 ;  and  has  been  adhered 
to  in  a  series  of  decisions  by  Ld.  Rosslyn  and  Ld.  Eldon,  vide 
Renison  v.  Ashley,  2  Ves.  jr.  459  ;  Ryues  v.  Ryves,  3  Ves.  343 ; 
Muckleston  v.  Brown,  6  Ves.  63  ;  Baker  v.  Melllsh,  10  Ves.  544  ; 
Attorney  General  v.  Brown,  1  Swanst.  294  ;  by  Sir  Thomas  Plumer, 
vice-chancellor,  in  the  case  of  Armitage  v.  Wadsworth,  1  Mad.  Rep. 
110;  and  by  Sir  William  Grant,  the  master  of  the  rolls,  in  Jones 
v.  Jones,  3  Mer.  161.  In  the  present  case,  the  bill  is  for  discovery 
and  relief.  The  demurrer  is  to  both ;  and  the  objection,  that  the 
demurrer  is  too  broad,  cannot  prevail.  Tiie  practice  is  too  well 
settled  to  be  disturbed. 

The  only  difficulty  in  my  mind,  on  this  part  of  the  case,  arose 
from  a  view  of  the  subject  which  was  not  taken  in  the  argument. 
It  is  this: — Here  was  a  mortgage  upon  a  trust  estate.  The  bill 
filed  was  against  the  trustee,  but  not  against  the  cestuis  que 
trust,  who  were  infants  and  a  feme  covert,  and  who  are  now 
the  complainants  before  the  court.  If  they  had  been  brought  in 
as  parties  defendants,  they  might  have  set  up  this  defence  in  their 
answer,  and  stood  in  a  very  different  posture  before  the  court. 
They  might  then  have  rested  upon  the  letter  of  the  statute.  But 
I  am  not  satisfied  that  their  situation  was  such  as  to  require  them 
to  be  made  parties  to  the  original  bill.  And  coming  in  as  they 
now  do,  as  complainants,  and  setting  up  the  defence  of  usury,  I 
nm  willing  to  apply  to  them  the  general  rule  which  applies  to  all 
other  persons  coming  in  a  similar  way,  and  asking  for  similar 
relief. 

I  ana  of  opinion  that  the  demurrer  is  well  taken,  and  must  be 
allowed. 

Another  question  has  been  raised  in  this  case,  on  a  motion  to 


JULY  TERM,  1831.  367 


Miller  et  al.  v.  Ford  et  al. 


vacate  the  order  made  in  the  nature  of  an  injunction,  staying  fur- 
ther proceedings  in  the  original  suit.  This  order  has  been  termed 
a  novel  and  unheard  of  proceeding  in  this  court.  Even  if  it  were 
so,  I  should  have  no  doubt  of  its  correctness.  If  this  court  may 
control  the  proceedings  of  other  tribunals,  for  the  purpose  of  ad- 
ministering more  complete  justice,  (and  that  is  one  of  its  most  val- 
uable powers,)  I  do  not  see  why  it  may  not  control  its  own  proceed- 
ings, to  attain  the  same  object.  I  believe,  however,  the  principle 
is  not  a  new  one,  though  perhaps  an  application  of  it  precisely  like 
to  the  present,  has  never  before  been  made.  It  is  not  uncommon 
to  stay  proceedings  on  an  execution  for  the  sale  of  mortgaged 
premises,  and  that  upon  motion;  and  in  the  case  of  Astor  v.  Ro- 
mayne,  L  John.  C.  R.  310,  the  court  ordered  a  sale  postponed  for 
six  weeks,  thereby  to  give  an  opportunity  for  some  arrangement, 
supposing  it  might  be  beneficial  to  all  parties.  And  in  the  case  of 
Jesse  Baldwin,  complainant,  and  Elizabeth  Johnston  and  John  Y. 
Baldwin,  defendants,  on  bill  filed  in  this  court,  an  order  very  sim- 
ilar to  the  one  in  the  present  case  was  made  in  February,  1822, 
restraining  the  complainant  in  a  prior  suit  from  proceeding  on  a 
certain  decree  and  execution  in  his  favor  in  this  court,  until  certain 
matters  touching  the  validity  of  the  mortgage  on  which  the  decree 
and  execution  was  founded,  should  be  properly  investigated.  That 
order  is  still  in  force,  and  the  second  suit  having  been  brought  to 
issue,  has  been  argued  before  the  court,  and  is  now  under  advise- 
ment on  its  merits. 

The  propriety  of  continuing  the  order,  after  the  answer  put  in 
on  the  part  of  some  of  the  defendants,  is  now  to  be  determined. 
So  far  as  the  last  mortgage  is  concerned,  I  think  there  can  be  no 
doubt  as  to  the  propriety  of  continuing  the  order.  The  whole 
transaction  is  a  very  extraordinary  one,  and  calculated  to  awaken 
strong  suspicion  ;  and  this  court  can  never  permit  the  property  to 
be  sold  to  satisfy  that  mortgage,  without  an  investigation  of  the 
facts  connected  with  it.  Some  of  the  most  important  charges 
remain  unanswered.  The  defendants  who  have  answered,  being 
merely  the  personal  representatives  of  Bonnell,  have  no  knowl- 
edge of  them,  and  therefore  can  neither  admit  nor  deny  them. 
One  charge  is,  that  a  large  part  of  the  money  received  by  Ford 
from  Bonnell,  was  appropriated  by  Ford  in  direct  violation  of  the 


368  CASES  IN  CHANCERY. 

Miller  et  al.  v.  Ford  et  al. 

trust,  and  with  the  full  knowledge  of  Bonnell,  who  was  perfectly 
acquainted  with  the  nature  of  the  trust.  This  is  not  answered. 
It  will  not  do  to  say  that  if  there  was  any  violation  of  trust,  Ford 
is  answerable,  and  not  Bonnell.  The  charge  is,  that  there  was  an 
understanding  between  them ;  and  such  are  the  circumstances  of 
the  case,  that  in  the  absence  of  any  denial  on  the  part  of  the  de- 
fendants, the  complainants  should  have  an  opportunity  of  proving 
it.  The  simple  fact,  that  Bonnell  consented  to  take  a  mortgage  on 
the  trust  property,  from  the  trustee,  for  a  large  amount,  with  an 
agreement  that  half  the  amount  was  for  the  benefit  of  the  trustee 
himself,  without  knowing  whether  the  money  was  actually  ad- 
vanced by  the  trustee,  or  how  it  was  appropriated,  is  sufficient,  in 
my  mind,  to  call  for  a  complete  investigation. 

I  have  had  some  doubt  as  to  the  propriety  of  continuing  the 
order  as  to  the  first  mortgage.  There  is  much  force  in  the  argu- 
ment, that  if  Ford  has  abused  his  trust,  Bonuell  should  not  be 
answerable,  or  his  estate  suffer.  But  if -Bonnell  has  voluntarily 
lent  himself  to  any  fraudulent  schemes  of  Ford  ;  if  he  has  aided  to 
embarrass  the  property,  and  connived  at  a  misappropriation  of  the 
very  funds  that  should  have  been  directed  to  the  payment,  in  part, 
of  his  own  mortgage,  his  situation  is  changed,  and  he  has  no  reason 
to  complain  if  he  is  put  to  some  inconvenience.  Seeing  the  inti- 
mate connection  that  must  have  subsisted  between  Ford  and  Bon- 
nell ;  seeing  that  the  equity  of  the  bill  is  not  fully  answered,  even 
as  it  regards  this  first  mortgage ;  and  seeing  also  that  Ford,  the 
trustee,  has  not  answered  the  bill,  I  deem  it  advisable  to  continue 
the  order  generally,  for  the  present.  Independently  of  this,  the 
property  is  an  entire  property,  and  cannot  be  sold  in  parcels.  If  a 
sale  takes  place,  the  whole  must  be  sold,  and  the  rights  of  those 
ultimately  interested  in  the  property  may  be  materially  injured. 

This  course  is  taken,  in  the  confidence  that  no  unnecessary  delay 
will  take  place  in  the  prosecution  of  the  suit.  The  whole  case  will 
be  at  all  times  under  the  control  of  the  court,  and  it  will  endeavor 
to  shape  its  course  in  such  way  as  most  effectually  to  protect  and 
preserve  the  interests  of  all  parties  concerned. 

CITED  in  Ware  v.  Thompson,  2  Seas.  67 ;  Giveans  v.  Mclfurtry,  I  C.  E.  GT. 
473;  Hudnut  v.  Nash.  Id.  553;  Vanderveer  v.  Holcomb,  2  C.  E.  Or.  91; 
Metier  v.  Metier,  3  C.  E.  Gr.  274. 


JULY  TERM,  1831.  369 

The  Attorney  General  v.  Stevens  et  al. 

THE  ATTORNEY  GENERAL  OF  THE  STATE  OF  NEW  JERSEY,  AT 
THE  RELATION  OF  DANIEL  PETTEE  AND  JOSHUA  SMITH,  v. 
JOHN  A.  STEVENS,  EDWIN  A.  STEVENS,  AND  JEREMIAH  H. 
SLOAN. 

Where  a  corporation  has  been  duly  organized,  and  thereby  acquired  a  legal  ex- 
istence, a  court  of  equity  will  not,  upon  an  alleged  nonuser-or  misuser  cf  ila 
corporate  privileges,  declare  the  charter  to  be  forfeited  :  such  a  power  is  of 
right  to  be  exercised  by  a  court  of  law  and  not  a  court  of  chancery. 

Where  a  set  of  men  claiming  to  be  a  legally  incorporated  company  under  an  act 
of  the  legislature,  have  done  every  thing  necessary  to  constitute  them  a 
corporation,  colorably  at  least,  if  not  legally,  and  are  exercising  all  the 
powers  and  functions  of  a  corporation  ;  they  are  a  corporation,  de  facto,  if 
not  dejure;  and  this  court  will  not  interfere,  in  an  incidental  way,  to  de- 
clare all  their  proceedings  void,  and  treat  them  as  a  body  having  no  rights 
or  powers. 

The  commissioners  appointed  to  receive  subscriptions  for  the  stock  of  an  incor- 
poration, are  trustees ;  and  as  such  this  court,  if  a  proper  case  was  made, 
might  control  their  acts:  but,  to  authorize  it,  there  should  be  some  com- 
plaint on  the  part  of  the  stockholders,  or  persons  subscribing  or  seeking 
to  subscribe  for  stock  ;  and  the  proceeding  should  be  by  bill,  and  not  by  in- 
formation. 

The  right  to  the  use  of  a  navigable  stream  is  a  right  common  to  all  the  people 
of  this  state.  Before  the  revolution,  this  right  was  in  the  crown:  the  peo- 
ple are  now  the  sovereign  power,  and  this  right  is  vested  in  them.  It  is 
their  property,  and,  as  such,  may  be  disposed  of  for  the  common  benefit,  in 
such  way  as  they  may  see  fit.  This  disposition  ^an  only  be  made  by  the 
legislature  of  the  state,  which  is  the  rightful  representative  of  the  people: 
and  where  such  disposition  is  made,  "consistently  with  the  principles  of  the 
law  of  nature,  and  the  constitution  of  a  well  ordered  society,"  it  must  be  con- 
sidered valid. 

The  power  of  the  legislature  is  not  omnipotent :  it  has  boundaries  beyond  which 
it  may  not  pass.  It  cannot  authorize  private  property  to  be  taken  for  public 
use,  without  providing  for  a  just  remuneration  ;  and  in  regard  to  those  public 
rights  which  appertain  to  the  citizens  generally,  a  common  property,  it 
cannot  make  such  disposition  of  them  as  entirely  to  defeat  the  citizens  of 
their  common  rights. 

This  power  is  not  confined  to  cases  only,  where  no  possible  injury  would  ac- 
crue to  any  individual.  In  every  case,  some  inconvenience  must  accrue  to 
individuals,  or  some  privileges  be  measurably  impaired  :  yet  if  such  disposi- 
tion or  regulation  (of  the  common  right)  be  for  the  common  benefit;  if  the 
situation  of  society  and  the  wants  of  the  public  require  it,  individual  con- 
.  venience  must  yield,  and  that  upon  the  most  obvious  principles  of  the  social 
compact. 

2  A. 


370  CASES  IN  CHANCERY. 

The  Attorney  General  v.  Stevens  et  al. 

The  surveyors  of  the  highways  and  chosen  freeholders  are  vested  with  a  general 
authority,  by  statute,  to  layout  and  cause  to  be  opened  public  highways:  but 
this  general  power  must  be  construed  reasonably.  "  A  navigable  river  is  of 
common  right  a  public  highway  ;  and  a  general  authority  to  lay  out  a  new 
highway,  must  not  be  so  extended  as  to  give  a  power  to  obstruct  an  open 
highway  already  in  the  use  of  the  public."  Hence  it  has  always  been  con- 
sidered necessary,  when  a  bridge  was  required  over  a  navigable  stream,  to 
procure  a  special  act  of  the  legislature  :  their  right  to  grant  such  power  is 
beyond  dispute. 

There  is  not,  in  the  charter  of  the  Camden  and  Amboy  Railroad  and  Transpor- 
tation company,  any  specific  grant  of  power  for  this  particular  bridge,  (over 
South  river.)  But  there  is  a  special  authority  to  erect  bridges  and  all  other 
works  necessary  for  the  completion  of  this  particular  road.  The  conclusion 
is,  that  the  power  to  construct  bridges  over  all  the  streams  on  the  route, 
eo  as  best  to  carry  into  effect  the  object  of  the  incorporation,  is  given  in  the 
act,  if  not  in  express  terms,  yet  by  necessary  implication  ;  and  the  grant  thus 
made  is  constitutional. 

The  power  must,  nevertheless,  be  exercised  discreetly,  and  with  a  due  regard  to 
the  privileges  of  others.  If  any  injurious  and  wanton  exercise  of  it  be  shown 
to  this  court,  it  will  interfere  and  regulate  it  on  proper  principles.  To  war- 
rant such  interference,  the  exercise  of  the  power  must  be  shown  to  be,  not 
only  injurious,  but  wilfully  or  wantonly  so ;  a  mere  mistake  in  judgment  will 
not  be  sufficient. 

The  word  surrey,  does  not  necessarily,  ex  vi  termini,  mean  a  map  or  profile  :  they 
are  sometimes  used  as  convertible  terms,  not  always.  The  boeks  filed  by  the 
Camden  and  Amboy  Railroad  and  Transportation  company,  in  the  office  of 
the  secretary  of  state,  containing  a  description  (in  words  and  figures) 
of  the  commencement  of  the  road,  the  different  stations  made  at  the  time 
of  the  survey,  the  courses  and  distances  between  those  stations,  and  the 
number  of  stations,  to  the  termination  of  the  road,  is  "o  survey"  within  the 
meaning  of  that  provision  of  the  charter  which  requires,  that  "  a  survey  of 
such  route  and  location  (of  the  road)  shall  be  deposited  in  the  office  of  the 
secretary  of  state ;"'  at  least  so  far  forth  as  to  warrant  the  court  in  refusing 
an  injunction  on  the  ground  that  no  survey  whatever  has  been  made.  In- 
junction refused. 

In  this  case  an  information  was  filed  in  the  name  of  the  At- 
torney General,  (at  the  relation  of  Daniel  Pettee  and  Joshua 
Smith,)  against  the  defendants,  to  restrain  the  Camden  and  Am- 
boy Railroad  and  Transportation  company,  and  the  defendants 
acting  under  their  authority,  from  erecting  a  bridge,  on  the  route 
of  said  road,  over  South  river,  a  navigable  stream  in  the  county 
pf  Middlesex.  The  grounds  charged  in  the  information,  and  re- 
lied on  in  the  argument,  were;  1.  That  the  stock  of  the  company 
was  not  legally  subscribed  according  to  the  terras  of  the  charter  ; 


JULY  TERM,  1831.  371 

The  Attorney  General  v.  Stevens  et  al. 

the  commissioners,  by  their  secretary,  having  subscribed  for  the 
whole  of  the  stock,  in  the  names  of  themselves  and  their  friends, 
upon  the  first  opening  of  the  books ;  and  immediately  thereafter 
closed  the  books,  and  refused  to  permit  other  persons  to  subscribe 
who  were  present  and  desired  to  subscribe  at  the  time,  and  also 
refused  to  open  the  books  and  permit  others  to  subscribe  on  sub- 
sequent days,  and  at  other  places,  when  and  where  they  had  giv- 
en notice  that  the  books  would  be  open  to  receive  subscriptions ; 
in  consequence  of  which,  it  was  insisted  that  the  subsequent  organ- 
ization of  the  company,  by  choosing  directors,  and  their  proceed- 
ings, was  void  ;  and  that  the  company,  not  having  been  duly  or- 
ganized, had  no  legal  existence,  and  were  not  authorized  to  act 
as  a  corporation.  2.  That  the  company  had  no  express  authority 
given  them  by  the  charter,  to  erect  bridges  over  navigable 
streams ;  and  if  such  a  power  was  given,  the  grant  was  uncon- 
stitutional and  void  :  And,  3.  That  a  survey  of  the  route  and 
location  of  the  railroad  had  not  been  made  and  deposited  in  the 
office  of  the  secretary  of  state,  pursuant  to  the  direction  of  the 
charter:  that  the  making  and  filing  of  the  survey  in  the  secreta- 
ry's office  was  a  condition  precedent,  without  the  performance  of 
which  the  proceedings  of  the  company  were  void. 

The  defendants  put  in  their  answer,  and  depositions  and  proofs 
were  taken  and  read  on  the  motion  for  the  injunction.  The  facts 
appear  more  fully  in  the  opinion  of  the  court. 

W,  Ifafsted,  for  the  relators.  1.  South  river  is  a  navigable 
stream  and  public  highway.  This  has  been  recognized  by  the 
legislature,  in  the  act  of  1816,  incorporating  the  Bordentown  and 
South  Amboy  Turnpike  company,  and  the  acts  of  1817  and 
1819,  authorizing  them  to  build  bridges  over  Crosswicks  creek 
and  South  river.  The  highest  authority  on  this  subject  is  to  be 
found  in  Learn,  and  Spi.  N.  J.  L.  390.  All  streams  are  con- 
sidered navigable  where  the  tide  ebbs  and  flows :  1  Haht.  R.  75. 
In  South  river  the  water  rises  from  three  and  a  half  to  six  feet. 
The  stream  may  be  navigated  with  sloops  of  from  twenty  to  thir- 
ty tons  burthen.  It  is  not  material  that  the  old  channel  has 
filled  up;  there  is  a  new  and  better  one  opened  :  Ang.  on  W.  C. 
96.  The  right  of  navigation  is  protected  by  the  act  of  1755. 


372  CASES  IN  CHANCERY. 

The  Attorney  General  v.  Stevens  et  al. 

This  cannot  be  repealed  by  implication.  The  right  may  be  regu- 
lated, but  not  impaired  :  1  Hoist.  R.  75.  Every  obstruction  to 
a  navigable  stream  is  a  public  nuisance  :  Eden  on  Inj.  161  ;  Ja- 
cob L.  D.  Nuisance',  5  Bac.  Ab.  Nuisance,  A.;  19  Vin.  Ab. 
244;  Noy.  103.  This  court  will  interfere  in  a  plain  case  of  nui- 
sance :  Eden  on  Inj.  157,  162;  2  Ans.  R.  603;  3  Atk.  R.  21, 
750  ;  5  Ves.jr.  29  ;  Amb.  R.  158;  2  Cox  R.  87.  Every  naviga- 
ble stream  is  a  public  highway  :  Ang.  W.  C.  17 ;  Camp.  N.  P. 
517  ;  4  Vin.  Ab.  503 ;  19  Vin.  Ab.  244. 

If  South  river  be  a  navigable  stream  and  public  highway,  the 
power  to  lay  out  a  new  highway  must  be  so  construed  as  not  to 
interfere  with  it.  To  authorize  such  interference,  there  must  be 
some  specific  provision  in  the  charter  :  2  Mass.  R.  489  ;  10  Mass. 
R.  70;  1  Pick.  R.  180.  There  must  be  express  authority  to 
take  away  private  rights:  4  Mass.  R.  125.  The  powers  given 
to  the  Camden  and  South  Amboy  Railroad  company,  in  their 
charter,  are  general ;  there  is  no  express  authority  to  erect  bridges 
over  navigable  streams. 

2.  Another  question  arises,  whether  this  company  ever  had  le- 
gal existence,  or  authority  to  act  as  a  corporation  ?  It  is  not  a 
question  of  misuser,  nonuser,  or  forfeiture,  that  could  not  be  tried 
in  a  court  of  equity  ;  19  John.  R.  ;  but  the  question  is,  whether 
they  have  any  corporate  rights :  4  Wheat.  R.  691.  The  char- 
ter of  the  company  is  not  a  close  charter.  They  are  not  incorpo- 
rated by  the  act.  The  franchise  is  in  abeyance ;  the  corporate 
powers  do*  not  attach  until  certain  conditions  are  performed.  Com- 
missioners are  appointed,  who  upon  giving  thirty  days'  notice  of 
the  times  and  places,  were  to  open  books  to  receive  subscriptions 
for  the  stock,  and  upon  a  certain  amount  of  stock  being  subscribed, 
the  company  was  to  be  organized,  when  the  subscribers  become 
the  corporation.  Has  this  been  legally  done  ?  Notice  was  given 
that  books  would  be  opened  on  three  successive  days,  at  different 
places.  By  the  charter  every  citizen  that  chose  had  a  right  to  sub- 
scribe ;  but  the  commissioners,  contrary  to  their  duty,  disposed  of 
the  stock  before  opening  the  books ;  and  when  they  were  opened, 
by  their  secretary,  subscribed  for  the  whole,  in  the  names  of  them- 
selves and  their  friends ;  then  closed  the  books  and  refused  to 
permit  others  to  subscribe,  who  attended  and  offered  to  subscribe. 


JULY  TERM,  1831.  373 

The  Attorney  General  v.  Stevens  et  al. 

Jobs  offered  to  subscribe  at  Hightstown,  and  Black  the  next  day 
at  Mount  Holly,  and  tendered  the  first  instalment;  but  they  were 
refused  the  privilege.  This  is  a  fraud  on  the  law.  The  stock  has 
never  been  legally  subscribed,  and  the  subsequent  organization  of 
the  company  is  void.  The  commissioners  are  trustees,  and  if  they 
have  violated  their  trust,  or  acted  fraudulently,  this  court  will  in- 
terfere: 1  Hopk.  R.  587. 

Again  :  This  company,  before  they  proceed  to  form  their  road, 
are  expressly  required  to  file  in  the  secretary's  office,  "  a  survey 
of  the  route  and  location  of  the  road."  This  has  not  been  done. 
They  have  filed  a  booh,  containing  field  notes  of  stations,  of 
courses  and  distances,  in  words  and  figures;  and  even  these  al- 
most unintelligible,  with  many  erasures  and  corrections,  notr  no- 
ticed in  the  certificate  annexed,  so  as  to  operate  as  a  check  against 
future  alterations ;  without  any  map  or  representation  of  streams, 
monuments  or  objects  on  the  route.  This  does 'not  satisfy  the 
law.  A  "survey,"  means  a  map  or  profile,  exhibiting  a  view  of 
the  route  of  the  road,  with  reference  to  natural  or  artificial  monu- 
ments or  objects,  by  which  it  might  be  traced,  and  ought  to  be  as 
perfect  and  free  from  erasures  and  interlineations  as  a  deed,  because 
under  this  the  company  acquire  title  to  the  lands.  Yet  even  tvhe 
witnesses  differ  in  opinion,  whether  this  is  a  survey  or  not.  It  is 
of  no  use  for  any  practical  purpose,  and  certainly  cannot  be  such 
a  survey  as  the  charter  contemplated  ;  without  which  the  company 
have  no  authority  to  proceed  in  forming  the  road  or  erecting  the 
bridge. 

G.  Wood,  for  the  defendants.  The  grounds  of  relief  charged 
in  the  complainants'  bill  are  not  sustained.  They  say,  the  com- 
missioners subscribed  for  the  whole  stock.  They  undoubtedly 
had  a  right  to  subscribe  for  any  amount  of  stock  they  pleased. 
By  the  evidence  it  appears,  that  Jobs  waited  until  all  the  stock 
was  taken  before  he  offered  to  subscribe,  and  that  Black  was  told 
all  the  stock  was  subscribed,  after  which  he  made  no  farther  offer. 
It  is  said  the  books  ought  to  have  been  kept  open  three  days,  ac- 
cording to  the  notice.  This  was  not  necessary.  The  commis- 
sioners were  not  bound  to  receive  subscriptions  for  more  stock 
than  there  was  to  be  taken.  The  case  in  Hop.  R.  does  not 


374  CASES  IN  CHANCERY. 

The  Attorney  General  v.  Stevens  et  al. 

support  the  position :  it  only  proves,  that  when  an  excess  of  stock 
is  subscribed,  the  court  may  interfere  to  regulate  its  distribution. 
Suppose  this  proceeding  of  the  commissioners  irregular,  who  haa 
a  right  to  complain  ?  Certainly  none  but  the  parties  injured  ; 
those  who  offered  to  subscribe  and  were  refused.  Jobs  and  Black 
make  no  complaint  here:  they  waive,  then,  their  right;  and 
surely  Smith  and  Pettee,  who  never  offered  to  subscribe,  cannot 
bring  this  matter  before  the  court,  in  an  incidental  way,  after  the 
stock  is  all  subscribed,  and  the  company  organized  and  going 
on  with  their  work.  But  if  Smith  and  Pettee  can  come  in,  and 
the  manner  in  which  the  stock  was  subscribed  is  an  objection,  it 
does  not  present  the  case  of  a  void  corporation,  or  one  not  organ- 
ized. The  stock  has  all  been  subscribed,  and  the  company  or- 
ganized, colorably  at  least.  They  are  a  corporation,  de  facto,  and 
entitled  to  go  on,  and  act,  until  their  rights  are  taken  away,  M'hich 
can  only  be  done  by  a  regular  proceeding  in  a  court  of  law.  A 
court  of  equity  will  not  undertake  to  treat  such  a  corporation  as  a 
void  corporation. 

But  it  is  the  attorney  general  who  complains;  he  is  the  officer 
of  the  government ;  they  have  waived  all  objection.  The  legisla- 
ture have  passed  two  acts,  recognizing  the  validity  of  these  pro- 
ceedings; by  one  they  have  agreed  to  take  a  larger  portion  of  the 
stock,  and  by  the  other  have  married  this  corporation  to  the  Del- 
aware and  Raritan  Canal  company. 

As  to  the  survey  of  the  route;  the  word  sumey,  here,  means 
such  a  description  of  the  route,  as  that  it  may  be  ascertained  and 
traced,  should  occasion  require.  This  io  best  given  in  words  or 
figures,  expressing  the  number  of  stations,  and  the  several  cour- 
ses and  distances,  from  the  beginning  to  the  end  of  the  route. 
Without  this  a  map  or  profile  would  afford  no  aid.  A  survey  of 
lands,  under  the  proprietors  of  New-Jersey,  does  not  mean  a  map, 
but  a  description  in  words,  to  be  recorded  in  a  book.  Yet,  if  the 
survey  be  defective,  a  court  of  equity  will  not,  on  that  ground,  in- 
terfere to  arrest  the  proceedings  of  the  corporation. 

The  remaining  ground  is,  the  obstruction  to  the  navigation  of 
the  river.  The  right  of  location  is  in  the  directors ;  they  may 
pass  over  all  lands  and  waters  that  may  be  necessary,  and  erect 
bridges.  This  power  is  not  restricted,  like  that  of  the  board  of 


JULY  TERM,  1831.  375 

The  Attorney  General  v.  Stevens  et  al. 

freeholders,  to  the  erection  of  bridges  over  streams  not  navigable. 
The  charter  authorizes  the  making  of  the  road,  which  cannot  be 
done  without  passing  over  navigable  streams;  and  the  power  to 
erect  bridges  over  them,  is  conferred  by  the  nature  of  the  grant, 
to  be  exercised,  it  is  true,  with  all  due  regard  to  the  rights  of  others. 
If  this  stream  was  navigated  by  sloops,  it  would  be  proper  to  put 
a  draw  in  the  bridge.  But  it  appearing  from  the  evidence  that  it 
is  only  navigated  by  scows,  that  is  unnecessary  ;  and  especially  as 
there  is  now  a  permanent  bridge  over  the  same  stream,  on  the 
route  of  the  turnpike,  but  a  few  rods  below.  The  power  thus 
granted  is  not  unconstitutional.  The  right  is  in  the  legislature;  it 
is  an  incident  of  sovereignty,  not  divested  by  the  state  or  federal 
constitutions.  You  cannot,  it  is  true,  take  private  rights  for  pub- 
lic use  without  just  compensation.  It  is  otherwise  with  a  right  of 
way,  or  navigation,  which  is  public  property  :  2  Peters'  U.  8.  C. 
H.  412,  414.  Having  the  power,  the  company  are  exercising  it 
discreetly.  It  is  said,  they  might  have  crossed  the  river  higher 
up  ;  but  it  appears  this  route  is  the  shortest  and  best.  This  court 
will  not  control  the  directors  in  the  exercise  of  their  discretion, 
unless  it  is  wantonly  used  :  1  John.  C.  R.  18.  What  is  the  injury 
apprehended  ?  The  navigation  will  not  be  destroyed,  but  sub- 
jected to  some  little  inconvenience.  This  is  the  case  with  the  bridge 
over  the  Raritan  at  New-Brunswick,  and  bndges  over  every  navi- 
gable stream.  Yet  the  power  to  authorize  their  erection  cannot  be 
questioned. 

THE  CHANCELLOR.  This  is  an  information  filed  by  Daniel 
Pettee  and  Joshua  Smith,  in  the  name  of  the  Attorney  General 
of  the  state,  for  the  purpose  of  obtaining  an  injunciion  to  restrain 
and  prevent  the  defendants,  who  profess  to  act  under  the  authority 
of  the  Camden  and  Amboy  Railroad  and  Transportation  company, 
and  also  to  restrain  the  said  company,  from  erecting  a  certain 
bridge  over  South  river,  in  the  county  of  Middlesex.  It  is  alleged, 
that  South  river  is  a  navigable  stream  ;  the  tide  ebbing  and  flow- 
ing at  the  place  where  the  bridge  is  sought  to  be  erected  :  that  it 
is,  of  course,  a  public  highway,  and  not  subject  to  hindrance  or 
interruption  by  the  said  company,  or  any  persons  pretending  to 
act  under  their  authority.  The  mode  of  proceeding  adopted  in 


376  CASES  IN  CHANCERY. 

The  Attorney  General  v.  Stevens  et  al. 

this  case,  is  founded  on  the  idea,  that  the  erection  of  a  bridge  across 
this  navigable  stream  would  be  a  public  nuisance,  and  that  at  the 
instance  or  information  of  the  proper  law  officer  of  the  state,  this 
court  may  interfere  to  prevent  the  erection  of  the  nuisance  by  in- 
junction. 

The  relief  is  prayed  for  on  two  grounds : 

The  first  is,  that  the  Camden  and  Amboy  Railroad  and  Trans- 
portation company,  under  whose  authority  the  defendants  claim  to 
act,  has  no  legal  existence,  inasmuch  as  the  terms  of  the  act  of  in- 
corporation have  not  been  complied  with,  and  consequently  that  the 
proceedings  of  the  company  are  void. 

The  second  is,  that  no  express  authority  is  given  by  the  charter 
to  the  company,  to  construct  bridges  over  navigable  streams  of 
water,  and  that  such  a  power  cannot  be  exercised  upon  implication 
merely ;  and  moreover,  that  if  such  power  be  given,  the  grant,  as 
to  that,  is  unconstitutional  and  void. 

Upon  the  first  point,  the  material  charges  in  the  information 
are  these :  that  sometime  after  the  passing  of  the  act  of  incorpora- 
tion, the  commissioners  named  in  the  act  caused  public  notice 
to  be  given,  that  books  of  subscription  to  the  capital  stock  of  the 
company,  would, be  opened  at  the  house  of  David  Perrine,  in 
Hightstown,  on  Tuesday  the  30th  day  of  March  ;  at  the  house 
of  Griffith  Owen,  in  Mount  Holly,  on  Wednesday  the  31st  day 
of  March ;  and  at  the  house  of  Isaiah  Toy,  in  Camden,  on 
Thursday  the  1st  day  of  April  :  that  the  books  would  be  opened 
at  ten  o'clock  each  day,  and  that  five  dollars  on  each  share  sub- 
scribed should  be  paid  at  the  time  of  subscribing.  That  the 
stock  was  in  great  demand,  and  many  persons  attended  at 
Hightstown  for  the  purpose  of  subscribing  for  stock  ;  but  that  the 
commissioners  subscribed  for  the  whole  of  the  capital  stock  them- 
selves, either  in  their  own  names  or  the  names  of  a  few  of  their 
friends;  and  immediately  after  the  said  commissioners  had  thus 
subscribed,  they  closed  the  subscription  books,  and  informed  the 
persons  who  applied  to  them  for  stock  in  the  said  company,  that 
the  stock  was  all  subscribed  and  the  subscription  books  closed, 
and  refused  to  permit  them  to  subscribe.  That  the  next  day, 
many  persons  attended  at  Mount  Holly,  and  applied  to  the  com- 
missioners for  leave  to  subscribe,  but  the  commissioners  refused ; 


JULY  TERM,  1831.  377 

The  Attorney  General  v.  Stevens  et  al. 

and  particularly  one  John  Black  offered  to  subscribe,  and  tender- 
ed in  specie  the  first  instalment  upon  the  shares  he  asked  leave  to 
subscribe  for;  that  the  said  commissioners  refused  leave  to  the 
said  John  Black  to  subscribe  for  any  of  the  said  stock,  but  offered 
to  sell  him  stock  for  an  advance  upon  the  par  value,  which  Black 
refused  to  give.  That  notwithstanding  the  i  1  leg' u  manner  in  which 
the'said  stock  was  subscribed,  the  commissioners  have  undertaken 
to  organize  the  said  company  according  to  the  provisions  of  the 
said  act  of  incorporation. 

All  the  facts  charged  have  not  been  fully  sustained  ;  but  it  suf- 
ficiently appears  from  the  answer  and  depositions  filed,  that  the 
sttck  was  all  subscribed  and  taken,  on  the  first  day,  at  Hights- 
town  :  that  while  there,  no  person  wrote  in  the  book  of  subscrip- 
tion but  the  secretary  of  the  commissioners.  It  was  evidently 
understood  by  the  commissioners,  who  were  to  be  permitted  to 
subscribe  and  receive  stock ;  for  when  the  secretary  had  made  an 
end  of  subscribing  for  himself,  and  the  other  commissioners,  and 
those  whose  names  were  given  by  them  or  some  of  them,  it  turned 
out  that  the  precise  amount  was  taken,  neither  a  share  more  nor  a 
share  less;  whereupon  the  books  were  closed,  and  no  person  after 
that  was  permitted  to  subscribe. 

It  has  been  held,  that  where  a  corporation  has  been  duly  or- 
ganized, and  thereby  acquired  a  legal  existence,  a  court  of  equi- 
ty will  not,  upon  an  alleged  nonuser  or  misuser  of  its  corporate 
privileges,  declare  the  corporation  to  be  forfeited  ;  that  such  pow- 
er is  of  right  to  be  exercised  by  a  court  of  law,  and  not  a  court 
of  chancery.  And  although  this  doctrine,  as  laid  down  in  Slee 
v.  Bloom,  5  John.  C.  R.  366,  was  subsequently  overruled  by  the 
court  of  errors  in  the  state  of  New-York,  yet  it  has  been  recog- 
nized in  at  least  two  several  instances  in  this  court,  and  appears 
to  rne  to  be  the  safe  rule  for  a  court  of  equity.  The  information 
in  this  case  seeks  to  avoid  that  principle.  It  does  not  bring  the 
company  into  court  and  proceed  against  them  as  duly  incorpo- 
rated, but  it  proceeds  against  certain  individuals,  and  sets  up  that 
the  Camden  and  Amboy  Railroad  and  Transportation  company, 
under  which  those  individuals  claim  to  act,  has  not,  and  never 
had  legal  existence  ;  that  the  stock  was  never  subscribed  for  ac- 
cording to  law,  and  that  all  subsequent  proceedings  are  void. 


378  CASES  IN  CHANCERY. 

The  Attorney  General  v.  Stevens  et  al. 

The  object  appears  to  be,  to  bring  before  the  court  the  question 
whether  the  commissioners,  who  were  appointed  in  this  case  by 
the  legislature  to  receive  subscriptions,  and  to  do  those  preliminary 
acts  which  are  necessary  for  the  proper  organization  of  the  compa- 
ny, acted  in  compliance  with  the  law  and  in  good  faith.  As  to 
their  power  and  s>ithority,  derived  as  it  was  from  the  legislature, 
its  legality  has  not  been  questioned. 

It  is  proper  to  inquire  in  this  place,  how  far  this  court  will  un- 
dertake to  look  into  these  matters,  thus  incidentally  brought  before 
them,  and  decide  upon  their  illegality  or  irregularity.  This  in- 
formation is  filed  by  the  Attorney  General,  for  the  purpose  of 
restraining  certain  persons  from  erecting  a  bridge  over  South 
river,  on  the  ground  that  it  is  a  public  highway,  and  that  the  erec- 
tion of  a  bridge  over  it  would  be  a  nuisance.  These  persons  are 
acting  under  the  authority  of  a  corporation,  organized  under  colour 
of  law.  The  court  is  asked  to  infer,  from  the  facts  shown,  that 
there  is  no  legal  corporation  in  existence.  . 

I  am  not  satisfied  under  existing  circumstances,  and  with  the 
facts  before  me  disclosed  by  the  information  itself,  that  it  is  the 
province  of  this  court  to  interfere  in  the  manner  desired.  It  ap- 
pears by  the  information,  that  the  shares  of  the  company  have 
been  all  subscribed  in  the  manner  therein  stated  ;  that  upon  due 
notice  given,  the  stockholders  have  appointed  their  directors; 
that  a  survey  of  the  proposed  road  has  been  made  by  the  com- 
pany, and  that  the  erection  of  the  road  is  in  progress.  Here, 
then,  is  a  set  of  men  claiming  to  be  a  legally  incorporated  com- 
pany under  the  act  of  the  legislature,  exercising  all  the  powers 
and  functions  of  a  corporation.  They  are  a  corporation  de  facto, 
if  not  de  jure.  Every  thing  necessary  to  constitute  them  a  cor- 
poration has  been  done,  colourably  at  least,  if  not  legally ;  and  I 
do  not  feel  at  liberty,  in  this  incidental  way,  to  declare  all  their 
proceedings  void,  and  treat  them  as  a  body  having  no  rights  or 
powers.  It  has  been  seen  that  the  court  will  not  do  this  where  a 
corporation  properly  organized  has  plainly  forfeited  its  privileges; 
and  there  is  but  little  difference  in  principle  between  the  two 
cases.  In  both  the  corporation  is  actually  in  existence,  but 
whether  legally  and  rightfully  so  is  the  question.  And  it  appears 
to  me,  that  if  the  court  can  take  cognizance  of  the  matter  in  this 


JULY  TERM,  1831.  379 

The  Attorney  General  v.  Stevens  et  al. 

case,  it  must  in  all  others  where  it  can  be  brought  up,  not  only 
directly  but  incidentally. 

The  case  of  Meads  v.  Walker,  Hopk.  R.  587,  relied  on  in  sup- 
port of  the  information,  is  very  different  from  the  present.  Au 
act  had  been  passed  by  the  legislature  of  New- York,  to  incorporate 
the  President,  Directors  and  Company  of  the  Commercial  Bank  of 
Albany;  and  the  question  was  as  to  the  conduct  of  the  commis- 
sioners in  apportioning  the  stock  among  the  subscribers.  The  bill 
was  filed  by  some  persons  who  had  subscribed  for  stock,  but 
received  none;  and  it  was  filed  against  the  commissioners,  and 
before  any  election  was  had  for  directors  of  the  company.  The 
proceedings  were  in  esse  and  unfinished  ;  the  company  was  not 
organized,  and  had  no  existence  either  in  law  or  fact.  In  that 
case  the  court  granted  an  injunction  to  prevent  the  election  of 
directors,  until  a  more  just  apportionment  should  be  made  of  the 
stock  subscribed.  A  similar  case  is  to  be  found  in  1  John.  C.  R. 
18,  impeaching  the  conduct  of  the  commissioners  under  the  act  for 
the  incorporation  of  the  Catskill  bank.  An  injunction  was  granted 
on  a  bill  filed  before  the  election  of  directors. 

The  persons  aggrieved,  if  there  are  any  such,  have  made  no 
complaint  before  this  court.  They  are  not  here,  seeking  to  have 
the  alleged  fraudulent  acts  of  the  commissioners  set  aside,  and 
their  own  rights  declared  and  protected.  If  they  had  presented 
themselves  here  at  a  proper  time,  or  were  now  here,  the  question 
sought  to  be  raised  by  this  proceeding  might  with  some  propriety 
be  considered.  It  is  admitted,  as  contended  for  on  the  part  of  the 
information,  that  the  commissioners  were  trustees,  and  that  as 
such  this  court,  if  a  proper  case  were  made,  might  control  their 
acts  ;  but  to  authorize  it,  there  should  be  some  complaint  on  the 
part  of  the  stockholders,  or  persons  subscribing  or  seeking  to  sub- 
scribe for  stock;  and  the  proceeding  should  be  by  bill,  and  not  by 
information.  This  information,  although  against  individuals 
named,  is  in  effect  against  the  Kailroad  company,  charging  them 
with  an  illegal  exercise,  if  not  an  usurpation  of  power.  Under 
this  view  of  the  case,  I  deem  it  unnecessary  for  me  to  inquire, 
whether  the  conduct  of  the  commissioners  was  regular  and  law- 
ful, or  otherwise,  in  permitting  the  subscriptions  to  be  made  in 
the  manner  they  were,  and  in  neglecting  to  open  the  books  at  all 


380  CASES  IN  CHANCERY. 

The  Attorney  General  v.  Stevens  et  al. 

the  places  mentioned  in  the  notice.  The  corporation  is  now  organ- 
ized, and  if  acting  without  authority,  is  liable  to  be  brought  at  any- 
time before  a  competent  tribunal,  in  a  mode,  the  legality  of  which 
cannot,  as  I  apprehend,  be  questioned. 

The  second  ground  for  relief  is,  that  the  company  have  no  ex- 
press authority  given  them  to  erect  bridges  over  navigable  streams ; 
and  that  if  such  power  be  given,  the  grant  of  it  is  unconstitu- 
tional and  void.  In  either  case,  it  is  contended,  an  injunction 
should  issue. 

If  a  grant  of  that  kind  be  unconstitutional  and  void,  it  will  not 
be  necessary  to  examine  whether  it  has  been  made  or  not.  Is  it, 
then,  unconstitutional  ? 

South  river,  at  the  place  where  it  is  contemplated  to  erect  a 
bridge,  is  a  navigable  stream.  The  tide  ebbs  and  flows,  as  it  is 
proved,  from  three  and  a  half  to  six  feet,  and  the  stream  is  navi- 
gated by  boats  or  scows.  There  is  one  landing  place  above  the 
proposed  site  of  the  bridge,  and  some  trade  is  carried  on  to  that 
landing.  The  right  to  the  use  of  this  navigable  stream  is  a  right 
common  to  all  the  people  of  the  state.  Before  the  revolution,  the 
right  was  in  the  crown.  The  people  are  now  the  sovereign  power, 
and  the  right  is  vested  in  them.  It  is  their  property,  and  as  such 
may  be  disposed  of  for  the  common  benefit  in  such  way  as  they 
may  see  fit.  This  disposition  can  only  be  made  by  the  legislature 
of  the  state,  which  is  the  rightful  representative  of  the  people. 
And  when  such  disposition  is  made,  "  consistently  with  the  princi- 
ples of  the  law  of  nature,  and  the  constitution  of  a  well  ordered 
society,"  it  must  be  considered  valid.  Such,  as  I  conceive,  has  ever 
been  the  sound  construction  of  the  legislative  power,  and  its  exer- 
cise has  been  in  perfect  accordance  with  it. 

The  power  of  the  legislature  is  not  omnipotent.  It  has  boun- 
daries beyond  which  it  may  not  pass.  It  cannot  authorize  pri- 
vate property  to  be  taken  for  public  purposes,  without  providing 
for  a  just  remuneration.  And  in  regard  to  many  public  rights 
which  appertain  to  the  citizens  generally,  it  cannot  make 
such  a  disposition  of  them  as  entirely  to  divest  the  citizens 
of  their  common  property.  But  it  does  not  follow  from  this, 
that  the  legislature  has  power  to  dispose  of  those  common 
rights,  only  in  cases  where  by  such  disposition  no  possible  injury 


JULY  TERM,  1831.  381 

The  Attorney  General  v.  Stevens  et  al. 

would  accrue  to  any  individual.  Such  a  power  would  be  nugatory 
There  is  scarcely  a  supposable  case  in  which  it  could  be  exercised. 
In  every  case  some  inconvenience  must  accrue  to  individuals,  or 
some  privileges  be  measurably  impaired.  Yet  if  the  disposition 
or  regulation  be  for  the  common  benefit;  if  the  situation  of  society 
and  the  wants  of  the  public  require  it,  individual  convenience  must 
yield,  and  that  upon  the  most  obvious  principles  of  the  social  com- 
pact. 

The  relators  are  owners  of  property,  and  interested  in  the  land- 
ing above  the  site  of  the  bridge.  They  have,  unquestionably,  a 
common  right  to  the  navigation  of  the  stream,  and  they  now  navi- 
gate it  with  scows.  A  bridge  placed  across  the  stream  below  the 
landing,  must  necessarily  affect  the  navigation  in  a  greater  or  less 
degree,  but  it  would  not  destroy  it.  It  would  occasion  some  addi- 
tional trouble  and  expense,  or  some  additional  delay  and  risk  ;  but 
the  right,  though  somewhat  impaired,  would  still  remain.  Such  is 
the  case  in  all  similar  instances,  where  bridges  are  authorized  over 
navigable  streams — such  as  the  Passaic,  the  Hackensack,  the  Rari- 
tan,  the  Rancocas,  and  others. 

The  right  of  the  legislature  to- make  the  grant,  is  beyond  dispute. 
It  remains  to  be  considered,  whether  the  power  to  erect  a  bridge 
over  this  navigable  stream  is  conferred  by  the  charter. 

There  is  certainly  no  power  given,  in  express  terms,  to  place  a 
bridge  over  South  river,  or  any  other  of  the  navigable  streams  on 
the  route  of  the  road. 

The  eleventh  section  of  the  act,  invests  the  company  with  full 
power  to  survey,  lay  out  and  construct,  a  railroad  or  roads,  with 
all  necessary  appendages,  from  the  Delaware  river,  at  some  point 
or  points  between  Cooper's  creek  and  Newton  creek,  in  the  county 
of  Gloucester,  to  a  similar  point  or  points  upon  the  Raritan 
bay.  And  it  enacts,  that  when  the  route  and  location  of  such 
road  shall  be  determined  upon,  and  a  survey  of  such  route  and 
location  deposited  in  the  office  of  the  secretary  of  state,  then  it 
shall  be  lawful  for  the  company  to  enter  upon,  to  take  posses- 
sion of,  hold,  use,  occupy  and  excavate,  any  such  lands,  and  to 
erect  embankments,  bridges,  and  all  other  works  necessary  to  lay 
rails  thereon,  and  to  do  all  other  things  which  shall  be  suitable 
and  necessary  for  the  effectual  completion  of  the  said  road  or 


382  CASES  IN  CHANCERY. 

The  Attorney  General  v.  Stevens  et  al. 

roads,  and  to  carry  into  full  effect  the  objects  of  their  incorpora- 
tion. 

This  section  gives  the  power  to  erect  bridges  generally,  where 
they  may  be  necessary.  It  makes  no  distinction  between  bridges 
over  navigable  streams,  and  streams  not  navigable;  and  unless 
it  can  be  clearly. shown  that  the  grant  of  a  power  to  erect  a  bridge 
over  a  navigable  stream,  is  to  be  in  some  certain  and  specific  form, 
I  should  incline  to  think  it  given  by  this  section.  It  was  argued, 
and  with  great  force,  at  the  bar,  that  this  general  authority,  as 
it  was  termed,  (o  erect  bridges,  did  not  include  the  power  to  place 
a  bridge  over  a  navigable  stream  or  public  highway ;  and  the 
case  of  the  Commonwealth  v.  Combs,  2  Mass.  Rep.  489,  was 
relied  on  in  support  of  the  doctrine.  The  law  of  that  case  is 
sound,  but  it  has  no  application  to  the  one  now  before  the  court. 
A  Certiorari  had  been  sued  out,  to  remove  a  record  of  the  court  of 
sessions,  respecting  the  laying  out  of  an  highway.  C.  J.  Parsons, 
in  delivering  the  opinion  of  the  court,-  says,  "  The  statute  gives 
a  general  authority  to  the  sessions  to  lay  out  highways,  but  the 
statute  must  have  a  reasonable  construction.  The  authority, 
therefore,  cannot  be  extended  to  the  laying  out  of  an  highway 
over  a  navigable  river,  whether  the  water  be  fresh  or  salt,  so  that 
the  river  may  be  obstructed  by  a  bridge.  A  navigable  river  is  of 
common  right  a  public  highway;  and  a  general  authority  to  lay 
out  a  new  highway,  must  not  be  so  extended  as  to  give  a  power 
to  obstruct  an  open  highway  already  in  the  use  of  the  public." 
The  same  doctrine  is  applicable  to  our  surveyors  of  highways  or 
chosen  freeholders.  They  are  vested  with  a  general  authority 
by  the  statute,  to  lay  out  and  cause  to  be  opened  public  highways; 
but  this  general  power  is  to  be  construed  reasonably,  and  with 
reference  to  the  rights  of  others.  Hence  it  has  always  been  con- 
sidered necessary,  when  a  bridge  was  necessary  over  a  navigable 
stream,  to  procure  a  special  act  of  the  legislature.  But  the  power 
given  to  the  company  in  this  case,  is  very  different  from  that  vested 
in  the  surveyors  of  the  highways  under  the  general  road  act. 
It  is  a  special  power,  for  certain  and  specified  purposes;  not  a 
general  authority  growing  out  of  a  public  statute,  and  to  be  exer- 
cised or  not,  as  occasion  may  require.  There  is  not,  it  is  true, 
any  specific  grant  of  power  to  construct  this  particular  bridge ; 


JULY  TERM,  1831.  383 


The  Attorney  General  v.  Stevens  et  al. 


but  there  is  a  special  authority  to  erect  bridges  and  all  other  works 
necessary  for  the  completion  of  this  particular  road.  If  this  were 
not  so;  if  the  privilege  of  erecting  bridges  over  the  navigable 
streams  on  the  route,  depended  on  some  subsequent  grant  of  the 
legislature,  the  operations  of  the  company  would  be  liable  to  be 
arrested  at  any  moment,  and  the  franchise  would,  of  course,  be  in- 
complete and  comparatively  useless. 

Again  ;  the  power  appears  to  flow  legitimately  and  conclusive- 
ly out  of  the  very  nature  of  the  grant.  The  road  is  to  commence 
below  the  mouth  of  Cooper's  creek,  and  between  it  and  Newton 
creek,  and  terminate  upon  the  Raritan  bay.  In  taking  this 
route,  it  is  necessary  to  cross  several  navigable  streams.  Cooper's 
creek  cannot  possibly  be  avoided,  without  great  and  unreasonable 
circuity.  The  same  is  true  in  regard  to  Pennshawkin,  Cross- 
wicks,  and  Rancocas  ;  and  this  being  the  case,  and  at  the  same 
time  a  matter  of  notoriety,  can  it  be  supposed  that  the  legislature 
intended  to  say  to  the  company,  you  may  build  your  railroad 
from  place  to  place,  at  a  great  expense,  but  you  shall  not  be  per- 
mitted to  connect  the  different  parts  of  it  by  necessary  bridges 
over  the  navigable  streams,  without  further  power  from  us,  to  be 
granted  at  some  future  day,  at  our  pleasure  ?  Is  it  not  more 
reasonable  to  conclude,  that  when  the  legislature  gave  the 
authority  to  erect  such  bridges  and  othe£  works  as  might  be 
necessary  for  the  completion  of  their  road,  they  intended  to 
convey  the  right  of  constructing  all  bridges  on  the  route  of 
their  road,  as  well  those  that  crossed  navigable  streams  as  those 
that  did  not?  Nay,  is  not  such  conclusion  necessary  for  the  safety 
of  the  company  ? 

The  rule,  as  contended  for  at  the  bar,  that  there  ought  to  be 
express  words  to  take  away  vested  privileges,  is  too  narrow.  In 
the  case  referred  to,  CooliJge  v.  Williams,  4  Mass.  R.  145, 
C.  J.  Parsons  gives  the  true  principle:  "Private  statutes, 
made  for  the  accommodation  of  particular  citizens  or  corpo- 
rations, ought  not  to  be  construed  to  affect  the  rights  and  privi- 
leges of  others,  unless  such  construction  results  from  express 
words,  or  from  necessary  implication.' '  In  that  case,  he  said, 
a  reasonable  effect  could  be  given  to  every  part  of  the  statute 
without  such  construction.  In  this,  I  do  not  see  how  it  is  possi- 


384  CASES  IN  CHANCERY. 

The  Attorney  General  v.  Stevens  et  al. 

ble  to  give  a  reasonable  effect  to  the  charter,  without  giving  the 
power  contended  for.  Any  other  would  leave  the  company  at  the 
mercy  of  future  legislatures,  and  in  a  situation  of  great  uncer- 
tainty. 

The  result  is,  that  this  power  to  construct  bridges  over  all  the 
streams  on  the  route,  so  as  best  to  carry  into  effect  the  object  of  the 
corporation,  is  given  by  the  act ;  if  not  in  express  terms,  yet  by  ne- 
cessary implication;  and  that  the  grant  thus  made  is  constitutional. 

The  power  must,  nevertheless,  be  exercised  discreetly,  and 
with  a  due  regard  to  the  privileges  of  others.  If  an  injurious  and 
wanton  exercise  of  it  be  shown  to  the  court,  it  will  interfere  and 
regulate  it  upon  proper  principles.  To  warrant  such  interference, 
the  exercise  of  power  must  be  shown  to  be  not  only  injurious, 
but  wilfully  or  wantonly  so.  A  mere  mistake  in  judgment  will 
not  be  sufficient :  Haight  and  al.  v.  Day  and  al.,  1  John.  C. 
18.  That  must  be  remedied  at  law.  In  this  case  I  do  not  find 
any  thing  like  a  wanton  exercise  of  power.  The  company  pro- 
pose to.  build  a  bridge  over  South  river,  on  what  the  engineer 
states  to  be  the  nearest  and  best  route.  Below  the  spot  where 
the  bridge  is  to  be  built,  there  is  already  a  permanent  bridge  over 
the  same  stream,  authorized  by  an  act  of  the  legislature.  This 
•was  originally  a  draw-bridge,  but  such  was  the  trifling  amount 
of  the  commerce  carried  on  through  and  above  the  bridge,  that 
the  legislature  a  few  years  since  was  induced,  for  the  greater 
convenience  of  the  public,  to  authorize  the  bridge  to  be  made 
permanent.  Such  being  the  case,  it  can  scarcely  be  considered 
an  unjustifiable  act  in  the  company  to  erect  their  bridge  at  the 
place  selected,  unless  in  so  doing  they  entirely  and  knowingly 
cut  off  the  trade  of  the  relators,  and  make  sacrifice  of  all  their 
interests  in  that  behalf;  which  is  not  pretended.  It  appears  that 
they  intend  to  leave  a  safe  and  convenient  passage  for  scows, 
which  is  the  only  kind  of  boat  that  navigates  that  part  of  the 
stream;  and  if  they  should  not,  the  parties  injured  will  have  a 
complete  and  summary  remedy. 

Another  questi-on  has  been  made,  which  is  proper  to  be  con- 
sidered. The  act- says,  that  when  the  route  or  routes  and  location 
of  such  road  or  roads  shall  have  been  determined  upon,  and  a 
survey  of  such  routes  and  location  deposited  in  the  office  of  the 


JULY  TERM,  1831.  385 

The  Attorney  General  v.  Stevens  et  al. 

secretary  of  state,  then  it  shall  be  lawful  for  the  company  to  enter 
upon  and  take  possession  of  lands,  &c.  And  it  is  insisted  that  no 
such  survey  has  been  filed,  pursuant  to  the  act;  that  the  filing  of 
the  survey  is  a  condition  precedent,  without  which  the  proceedings 
of  the  company  are  void.  On  the  other  side  it  is  insisted ,  that  a 
proper  survey  has  been  regularly  filed  in  the  office. 

Two  small  books  have  been  produced  before  the  court.  They 
contain,  it  is  alleged,  the  courses  and  distances  of  the  proposed  rail- 
road, from  Camden  to  Amboy.  They  give  the  commencement  of 
the  road  ;  the  different  stations  made  at  the  time  of  the  survey  ;  the 
course  and  distance  between  each  station,  and  the  number  of  stations 
to  the  termination  of  the  road.  This  is  supposed  by  some  to  be  a 
survey,  and  by  others  to  be  none.  If  a  survey  necessarily,  ex  vi 
termini,  means  a  map  or  profile  of  the  route,  then  this  is  no  survey 
in  that  sense  of  the  term.  But  I  am  not  satisfied  that  this  is  the 
case.  They  are  sometimes  used  as  convertible  terms,  but  not  always. 
In  the  act  of  1719,  for  settling  the  boundary  between  East  and 
West  Jersey,  a  plain  distinction  is  made  between  books  of  surveys, 
and  maps  or  draughts  of  land.  And  generally,  when  the  term 
survey  is  used  in  relation  to  the  location  of  proprietary  rights,  it  is 
understood  to  mean  a  description,  in  words  or  figures,  of  the  lands 
located.  Such  are  all  the  surveys,  as  recorded  in  the  surveyor  gen- 
eral's office,  and  the  meaning  of  the  term  is  there  perfectly  under- 
stood. By  our  road  act,  the  surveyors  laying  out  a  public  highway, 
are  to  make  a  return  of  the  road,  with  a  map  or  draught  of  the 
same,  with  the  courses  and  distances.  The  term  survey  is  not 
mentioned. 

Upon  the  whole,  I  take  the  description  returned  and  filed  in  the 
office,  to  be  a  survey  within  the  meaning  of  the  act ;  at  all  events  so 
far  forth  as  to  warrant  the  court  in  refusing  an  injunction  against 
the  company,  on  the  ground  that  no  survey  whatever  has  been  filed. 
If  a  mistake  has  been  made  by  the  company,  acting  without  fraud 
or  corrupt  intention,  but  seeking  to  comply  with  the  requisitions 
of  the  law,  it  does  not  present  a  proper  case  for  the  interference  of 
this  court,  by  the  extraordinary  remedy  of  injunction. 

The  injunction  is  refused,  with  costs. 

CITED  in  Alfy  Gen.  v.  Pat.  &  H.  R.  R.  R.  Co.,  1  Stock.  559 ;  Alien  v.  Freeholder* 
of  Monmouth,  2  Beas.  73  ;  Owen  v.  Whitaker,  5  C.  E.  Or.  125 ;  Penn.  R.  R. 
Co,  v.  N.  Y.  &  L.  B.  R.  R.  Co.,  8  C.  E.  Qr.  160. 

2B 


IN   THE 


COURT   OF  CHANCERY 

OF  THE 

STATE    OF    NEW -JERSEY, 

OCTOBER  TERM,  1831. 


MARTHA  MILLER  v.  JONATHAN  VV.  MILLER. 


Application  to  discharge  a  ne  exeat,  not  having  been  made  until  after  the  cause 
was  noticed  for  final  hearing,  refused. 

All  such  parts  of  depositions,  as  go  to  prove  matters  in  no  way  put  in  issue  by 
the  pleadings,  ordered  to  be  stricken  out. 

The  statute  (Rev.  L.  667,  s.  2)  directing  that  answers  to  bills  of  divorce  "  shall 
not  be  under  oath  ; "  the  answer,  though  sworn  to,  cannot  be  considered  aa 
evidence  for  any  purpose. 

This  court,  under  the  statute,  (Rev.  L.  663,  s.  10,)   has  original  jurisdiction  to 

allow  alimony,  although  there  is  no  decree  for  a  divorce. 
Articles  of  separation,  signed  by  the  parties,  are  no  bar  to  the  claim  of  the  wife 

upon  the  husband  for  alimony. 

The  effects  of  the  marriage  are,  that  the  husband  and  wife  are  one  person  :  he 
hath  power  over  her  person  as  well  as  estate,  and  he  is  bound  to  maintain  her 
in  a  suitable  manner,  according  to  his  circumstances  :  the  wife,  by  marriage, 
has  parted  with  her  property,  and  placed  herself  under  the  control  of  her 
husband,  and  looks  to  him  for  support. 

Although  the  wife  voluntarily  left  her  husband's  house,  but  afterwards  offered  to 
return;  yet  he  has  separated  himself  from  her,  and  refuses  to  provide  for 
her :  the  court  ought  to  order  a  suitable  maintenance  to  be  provided  for  her 
by  her  husband. 

The  usual  course  is,  to  refer  it  to  a  master,  to  ascertain  and  report  what  ought  to 
be  paid  for  the  wife's  support.  But  testimony  having  been  taken,  and  the 
matter  debated  on  the  hearing,  and  neither  party  requesting  a  reference,  the 
allowance  was  fixed  by  the  court. 

386 


OCTOBER  TERM,  1831.  387 

Miller  v.  Miller. 

Decreed,  that  the  husband  allow  the  wife  one  hundred  dollars  per  annum,  in 
half-yearly  payments,  until  the  farther  order  of  the  court;  that  he  give  se- 
curity for  the  payment  thereof,  and  pay  the  costs  of  the  suit;  and  that  either 
party  have  liberty  to  apply  to  the  court  for  an  alteration  of  the  alimony. 


The  complainant  sets  forth  in  her  bill,  that  she  was  lawfully- 
married  to  the  defendant,  Jonathan  W.  Miller,  in  the  year 
eighteen  hundred  and  eleven,  and  shortly  after  went  and  lived 
with  him  as  his  lawful  and  acknowledged  wife,  and  so  continued 
for  a  period  of  seventeen  years ;  having  by  her  said  husband  five 
children,  three  sons  and  two  daughters:  and  the  object  of  the  com- 
plainant's bill  is,  to  set  aside  the  articles  of  separation  therein  set 
forth,  alleged  to  be  obtained  by  threats  and  promises,  and  without 
consideration  ;  and  for  alimony. 

William  Tuttle,  the  trustee  and  one  of  the  defendants,  put  in 
his  answer,  denying  that  the  said  complainant,  when  she  executed 
the  said  articles,  was  under  the  influence  of  fear  or  of  promises; 
but  says  that  she  did  the  same  understandingly. 

Jonathan  W.  Miller,  the  complainant's  husband,  also  put  in  his 
answer  to  her  said  bill ;  and  among  other  things,  admits  the  mar- 
riage; but  charges  her  with  adultery,  and  that  upon  the  discovery 
thereof  she  confessed  it,  and  agreed  to  separate  and  live  apart  from 
her  said  husband  ;  that  an  article  of  separation  was  prepared  and 
executed,  which  is  set  forth  in  the  said  answer ;  and  having  dis- 
covered that  the  same  was  inartificially  drawn,  he  procured  another 
deed  of  separation  to  be  drawn,  which  is  the  article  set  forth  in  the 
complainant's  said  bill,  which  article  she  read,  and  it  was  also  read 
to  her,  before  its  execution  ;  and  he  denies  that  he  made  use  of  any 
threats  or  promises  to  induce  her  to  sign  it,  but  says  that  she  signed 
it  freely  and  voluntarily. 

To  these  answers  replications  were  filed,  and  the  parties  made 
exhibits,  and  examined  numerous  witnesses. 

Shortly  before  the  hearing,  an  application  was  made,  in  pursu- 
ance of  notice,  to  discharge  the  writ  of  ne  exeat  issued  in  the  cause, 
and  also  to  strike  out  and  suppress  the  testimony  of  certain  wit- 
nesses examined  on  the  part  of  the  complainant,  which  were  named 
in  the  said  notice. 

The  chancellor  having  been  of  counsel  with  one  of  the  par- 


388  CASES  IN  CHANCERY. 

Miller  v.  Miller. 

ties,  E.  Vanarsdale,  esquire,  one  of  the  masters  of  the  court,  was 
called  to  sit  and  hear  the  cause :  which,  by  consent  of  the  parties, 
was  argued  and  debated  before  the  master,  at  Newark,  in  March 
last,  by 

Th.  Frelinghuysen,  for  the  complainants; 

J.  W.  Scott  and  T.  A.  Hartwell,  for  the  defendants. 

At  the  present  term,  the  following  opinion  was  delivered : — 

VANARSDALE,  M.  The  defendant,  Jonathan  W.  Miller,  hav- 
ing delayed  his  application  until  after  the  cause  was  noticed  for 
final  hearing,  the  motion  to  discharge  the  ne  exeat  was  denied. 
With  respect  to  the  application  to  strike  out  testimony,  the  same 
was  held  under  advisement,  and  the  parties  proceeded  with  the 
argument  of  the  cause.  And  having  considered  of  the  said  ap- 
plication, I  am  of  opinion,  that  all  such  parts  of  the  depositions 
of  the  said  witnesses  as  prove,  or  tend  to  -prove,  immoral  acts  or 
conduct,  or  reports  or  hearsay  of  immoral  acts  or  conduct,  by  the 
said  Jonathan  W.  Miller,  with  one  Susan  Bullman,  a  person 
named  and  referred  to  in  the  said  depositions,  ought  to  be  struck 
out  by  the  clerk  of  the  court ;  such  immoral  conduct  or  act,  re- 
port or  hearsay,  being  noways  put  in  issue  by  the  pleading  in  the 
cause :  but  the  residue  of  the  said  application  to  strike  out  is 
denied. 

It  may  be  proper  to  observe,  that  the  answer  of  Jonathan  W. 
Miller  is  put  in  under  oath.  In  the  case  of  Tomkins  v.  Tom- 
kins,  in  this  court,  the  defendant's  answer  was  sworn  to.  Chan- 
cellor Williamson  says,  I  am  of  opinion  that  I  cannot  consider  her 
affidavit  to  the  answer  as  evidence  for  any  purpose. 

The  legislature  have  directed,  that  in  all  cases  of  divorce,  the 
answer  shall  not  be  under  oath.  (Rev.  L.  667,  s.  2.)  In  the  same 
act,  jurisdiction  of  causes  for  alimony  is  given  to  the  court,  and  the 
same  practice  and  procedure  is  directed.  I  shall,  therefore,  con- 
sider Mr.  Miller's  answer  as  if  it  had  not  been  sworn  to. 

According  to  the  course  of  proceeding  in  England,  it  would  be 
necessary  to  set  aside  the  articles  of  separation,  and  incidentally 
to  give  the  alimony  prayed  for.  In  the  case  of  Ball  v.  Mont- 


OCTOBER  TERM,  1831.  389 

Miller  v.  Miller. 

gomery,  2  Ves.  jr.  195,  the  lord  chancellor  says,  "I  take  it  to 
be  the  established  law,  that  no  court,  not  even  the  ecclesiastical 
court,  has  any  original  jurisdiction  to  give  a  wife  separate  main- 
tenance." But  in  this  state,  E  consider  this  court  has  original  ju- 
risdiction. By  statute,  (Rev.  L.  663,  s.  10,)  it  is  enacted, 
"that  in  case  a  husband,  without  any  justifiable  cause,  shall 
abandon  his  wife,  or  separate  himself  from  her,  and  refuse  or 
neglect  to  maintain  and  provide  for  her,  it  shall  and  may  be 
lawful  for  the  court  of  chancery  to  decree  and  order  such  suita- 
ble support  and  maintenance  to  be  paid  and  provided  by  the  said 
husband,  for  the  wife  and  her  children,  or  any  of  them  by  that 
marriage,  or  out  of  his  property,  and  for  such  time  as  the  nature 
of  the  case  and  circumstances  of  the  parties  render  suitable  and 
proper,  in  the  opinion  of  the  court,  and  to  compel  the  defendant 
to  give  reasonable  security  for  such  maintenance  and  allowance." 

In  the  case  of  Melony  v.  Melony,  in  this  court,  decided  by 
chancellor  Williamson,  upon  a  bill  filed  by  the  wife  against  the 
husband  for  divorce  and  alimony,  the  court  declared  there  was 
no  case  stated  in  the  bill  Or  proved  in  evidence,  which  could  war- 
rant a  decree  for  a  divorce,  but  proceeded  to  make  a  decree  for 
alimony.  I  have  therefore  no  doubt  that  this  court  has  jurisdic- 
tion to  allow  alimony,  although  no  decree  is  made  nor  opinion, 
given  respecting  the  said  articles  of  separation. 

I  have  considered  of  the  testimony  in*"this  cause,  concerning 
the  manner  in  which  these  articles  of  separation  are  alleged  to 
have  been  obtained.  The  acts  of  ill  usage  proved  prior  to  the 
execution  thereof,  are  so  distant  therefrom,  and  were  attended 
with  such  circumstances,  that  I  see  no  reasonable  ground  to  be- 
lieve that  they  had  any  influence  in  procuring  said  articles;  and 
as  to  the  time  the  same  were  executed,  there  is  no  sufficient  proof 
that  they  were  obtained  by  the  threat  or  promises  charged  in  the 
bill. 

Jonathan  W.  Miller,  in  his  answer,  says,  that  the  complain- 
ant, upon  being  charged  with  adultery,  confessed  it ;  and  there- 
upon they  agreed  to  live  separate.  And  I  have  no  doubt  that 
such  confession  was  the  cause  of  their  agreement  to  live  apart, 
and  of  procuring  the  said  articles  to  be  executed.  Mr.  Miller 
ought  not  to  be  blamed  for  wishing  to  live  apart  from  his  wife, 


390  CASES  IN  CHANCERY. 

Miller  v.  Miller. 

after  she  had  made  such  confessions;  but  he  ought  to  have  ap- 
plied to  a  proper  tribunal  for  that  purpose,  or  provided  her  with 
'suitable  support.  Nor  could  it  be  expected  that  he  would  be  satis- 
fied with  the  excuse  that  she  denied  it  shortly  after,  nor  that  she 
said  she  would  die  sooner  than  confess  it  again. 

It  may  be  that  if  the  husband  seek  for  a  divorce  against  his 
wife  on  the  charge  of  adultery,  he  must  prove  it;  but  the  case 
is  different  when  she  seeks  to  be  relieved  against  articles  founded 
upon  her  confession  of  the  charge.  Without,  therefore,  entering 
into  the  question  of  the  consideration,  the  master  is  of  opinion, 
that  this  court  ought  not  to  set  aside  the  said  articles.  Whether 
they  will  bar  the  complainant  from  the  recovery  of  alimony, 
which  is  founded  on  the  marriage  contract,  remains  to  be  con- 
sidered. 

Two  objections  are  made  to  it: — 1.  That  she  has  committed 
adultery.  2.  That  she  is  barred  by  the  articles  of  separation. 

As  to  the  charge  of  adultery,  it  could  answer  no  useful  pur- 
pose to  state  and  compare  the  evidence  on  both  sides.  I  have 
considered  of  it,  and  the  arguments  of  the  counsel  The  evi- 
dence in  support  of  the  charge  is  contradicted  by  evidence  on  the 
part  of  the  complainant;  and  each  party  has  attempted  to  discre- 
dit the  testimony  on  the  other  side.  My  opinion  is,  afttr  consid- 
ering the  circumstances  of  this  case,  that  the  charge  is  not  suffi- 
ciently proved  to  bar  the  complainant's  claims  for  alimony. 

With  respect  to  the  articles  of  separation,  it  is  therein  agreed, 
among  other  things,  to  live  separate,  and  that  the  said  Jonathan 
was  not  to  claim  any  thing  he  might  give  her  within  ten  days, 
nor  such  property  as  she  might  afterwards  acquire;  and  was  to 
pay  to  the  said  Martha  yearly,  on  the  first  day  of  May,  during 
her  natural  life,  the  sum  of  one  dollar,  which  sum  she  accepted 
in  full  satisfaction  for  her  support  and  maintenance,  and  of  all  ali- 
mony during  coverture,  and  dower  in  case  the  said  Martha  sur- 
vived the  said  Jonathan. 

By  these  articles  no  provision  is  made  for  the  support  of  the 
complainant,  the  annual  payment  being  a  mere  nominal  sum. 
It  does  not  appear  from  the  testimony  that  she  had  a  separate 
property  for  her  maintenance,  nor  that  the  clothing  taken  by  her 
and  property  given  to  her  within  the  ten  days  mentioned  in  the 


OCTOBER  TERM,  1831.  391 


Miller  v.  Miller. 


articles,  would  answer  for  that  purpose.  How,  then,  is  the  com- 
plainant to  be  supported  ?  Her  friends  may  do  it  if  they  please, 
but  they  are  under  no  legal  obligation  to  provide  for  her  :  nor  are 
the  public  bound  to  support  her  as  long  as  her  husband  is  of  ability 
to  do  it. 

By  marriage  with  a  woman,  the  husband  is  entitled  to  an  abso- 
lute or  qualified  right  to  all  her  estate,  real  and  personal ;  and  the 
effects  of  the  marriage  are,  that  the  husband  and  the  wife  are  accounted 
one  person,  and  he  hath  power  over  her  person  as  well  as  estate, 
and  he  is  bound  to  support  and  maintain  her  in  a  suitable  manner, 
according  to  his  circumstances.  The  wife,  by  marriage,  has  parted 
with  her  property,  placed  herself  under  the  control  of  her  hus- 
band, and  looks  to  him  for  support. 

In  the  before  mentioned  case  of  Melony  v.  Melony,  the  chancel- 
lor says,  "I  am  clearly  of  opinion  that  the  agreement  between  the 
parties  to  live  in  a  state  of  separation,  cannot  be  recognized  in  this 
court  as  valid,  and  that  such  agreement  is  a  direct  contravention 
of  the  marriage  contract.  It  id  contrary'  to  sound  policy  as  well  as 
morality,  that  the  parties  who  have  entered  into  the  marriage  state 
should  be  permitted  to  separate,  and  agree  that  they  will  live  in  a 
state  of  separation,  and  free  from  the  obligations  imposed  on  them 
by  the  marriage.  The  marriage  contract  cannot  be  annulled  and 
cancelled,  nor  the  parties  absolved  from  their  obligations  of  it 
by  their  private  agreement."  And  he  further  observes,  that  the 
complainant,  in  his  opinion,  "had  a  right  to  put  an  end  to  that 
agreement  whenever  she  pleased,  and  to  call  on  her  husband  for 
the  fulfilment  of  his  marital  obligations.  What  remedy  the  hus- 
band might  have  upon  the  agreement,  against  the  trustee,  is  not 
now  a  question  for  consideration.  And  I  think  it  sufficiently 
proved,  that  the  complainant  has  offered  to  return  and  live  with 
the  defendant,  and  that  he  refuses  to  live  with  her,  and  neglects  to 
provide  for  her  or  to  maintain  her  according  to  his  circumstances 
and  situation  in  life." 

In  the  before  mentioned  case  of  Tomkins  v.  Tomkins,  the 
chancellor  remarks,  "  A  husband  has  no  right,  upon  a  charge  of 
adultery  against  his  wife,  to  turn  her  out  of  doors,  or  by  his  cru- 
elty to  drive  her  from  his  house  destitute  and  unprovided  for." 
And  again  :  "  It  may  have  been  the  misfortune  of  a  husband  to 


392  CASES  IN  CHANCERY. 

Miller  v.  Miller. 

have  connected  himself  in  marriage  with  a  profligate  and  aban- 
doned woman  ;  but  his  obligation  to  maintain  her  continues  until 
the  marriage  bonds  are  legally  dissolved,  or  she  voluntarily  sepa- 
rates herself  from  him:  6  Mad.  171,  S.  C. ;  I  Salk.  119;.  1  Esp. 
441." 

In  Nurse  v.  Craig,  5  Bos.  and  P.  148,  the  husband  and 
wife  lived  separate,  and  he  covenanted  by  deed  with  his  wife's 
sister  to  pay  a  certain  weekly  allowance  during  their  separation ; 
and  the  wife  afterwards  lived  with  her  sister,  and  was  by  her 
supplied  with  necessaries.  The  husband  failed  to  pay  the  stipu- 
lated allowance.  The  wife's  sister  maintained  indebitatus  as- 
sumpsit  against  the  husband  for  necessaries.  It  was  objected,  she 
ought  to  have  sued  on  the. covenant ;  but  the  majority  of  the 
court  held,  that  as  the  husband  had  failed  to  pay  according  to 
the  agreement,  he  was  liable  for  the  necessaries  furnished  for  his 
wife. 

It  seems  only  necessary  to  add,  that  it  is  the  opinion  of  the  mas- 
ter, that  the  articles  of  separation  mentioned  in  the  pleadings  are 
no  bar  to  her  claims  on  her  husband  for  alimony. 

In  the  present  case,  although  it  appears  that  the  complainant 
voluntarily  left  her  husband's  house,  it  also  appears,  that  after- 
wards she  offered  to  return;  that  he  has  separated  himself  from 
his  said  wife  and  refuses  and  neglects- to  provide  for  her;  and  it 
is  my  opinion  that  the  court  ought  to  decree  and  order  her  suita- 
ble support  and  maintenance,  to  be  provided  for  her  by  her  said 
husband. 

What  is  such  suitable  support  and  maintenance,  remains  to  be 
determined.  The  usual  course  in  such  cases  is,  to  refer  the  matter 
to  a  master,  to  ascertain  and  report  what  allowance  ought  to  be 
paid  for  the  complainant's  support.  But  testimony  having  been 
taken,  and  the  matter  debated  on  the  hearing,  and  neither  party  re- 
questing a  reference  so  as  to  take  further  evidence,  I  have  consid- 
ered also  of  this  matter.  It  appears  that  the  complainant  has  a 
weakly  constitution,  and  is  not  able  by  labor  to  support  herself: 
that  the  defendant,  Jonathan  W.  Miller,  provides  for  his  five  chil- 
dren ;  and  that  his  estate  is  worth  about  seven  thousand  dollars.  The 
income  of  the  farm  is  not  proved,  and  it  cannot  with  certainty  be 
ascertained  from  the  price  it  will  bring. 


OCTOBER  TERM,  1831.  393 

The  Society,  &c.  v.  Haight. 

From  the  consideration  of  this  case,  under  all  its  circumstances, 
I  am  of  opinion  it  ought  to  be  decreed  that  the  said  Jonathan  \V. 
Miller,  for  the  time  to  come,  do  provide  for  the  support  of  the  com- 
plainant, one  hundred  dollars  per  annum,  to  be  paid  to  her,  or  some 
person  to  be  named  by  the  court  for  her,  in  half-yearly  payments, 
until  this  court  shall  make  other  order  to  the  contrary  :  that  he  pay 
the  costs  of  this  suit :  that  either  party  have  liberty  to  apply  to  the 
court  for  an  alteration  of  the  alimony  or  maintenance,  as  occasion 
may  require:  that  the  defendant  give  reasonable  security  for  such 
alimony  or  maintenance;  and  that  in  the  mean  time,  and  until  the 
order  of  this  court  to  the  contrary,  the  writ  of  ne  exeat  be  contin- 
ued. And  in  case  he  shall  refuse  or  neglect  to  give  such  security, 
that  the  complainant  have  the  remedy  provided  by  the  ninth  sec- 
tion of  "an  act  concerning  divorces,  and  for  other  purposes,"  Rev. 

L.  668. 

ELIAS  VANARSDALE, 

Master  in  Chancery. 

CITED  in  Yule  v.  Yule,  2  Stock.  145;  Rockwell  v.  Morgan,  2  Beas.  120;  Anshuta 
v.  Anshuiz,  I  C.  E.  Gr.  165. 


THE  SOCIETY  FOR  ESTABLISHING  USEFUL  MANUFACTURES, 
v.  WARREN  HAIGHT. 


Parol  evidence  is  inadmissible  to  disannul  or  substantially  vary  a  written  agree- 
ment, except  on  the  ground  of  mistake  or  fiaud. 

Where  there  is  a  clear  subsequent  and  independent  agreement,  evidence  of  it 
may  be  received ;  but  not  where  it  is  a  matter  passing  at  the  same  time  with 
the  written  agreement. 

There  are  instances  where  a  general  understanding  and  practice  may  be  set  up 
to  explain  a  written  agreement,  but  it  must  amount  to  a  custom,  and  be 
pleaded  as  a  custom  from  time  immemorial ;  such  as  the  custom  in  favor  of 
the  tenant's  taking  the  way-going  crop ;  but  even  such  custom  cannot  be  in- 
sisted on  if  it  be  excluded  by  the  terms  of  the  agreement. 

Under  a  lease  from  .the  Society  for  establishing  useful  Manufactures,  of  a  lot  of 
land  extending  from  their  canal  on  Boudinot  street  back  to  the  river  Pas- 
saic,  with  the  privilege  of  a  certain  quantity  of  water  to  be  used  on  the  lot 
for  milling  purpose.*,  without  any  limitation  as  to  the  head  and  fall ;  the 


394  CASES  IN  CHANCERY. 

The  Society,  &c.  v.  Haight. 

tenant  may  avail  himself  of  all  the  head  and  fall  that  can  be  had  within  the 
specified  limits  of  his  lot. 

Parol  evidence  of  a  general  understanding  among  the  tenants,  or  of  previous 
circumstances  going  to  show  that  the  lots  on  this  tier  were  entitled  to  less 
head  and  fall,  is  inadmissible;  and  an  injunction  to  restrain  the  tenant  from 
sinking  his  wheel-pit  and  race  to  a  level  with  the  surface  of  the  water  in  the 
Passaic,  so  as  to  obtain  all  the  head  and  fall  between  the  canal  and  the 
river,  was  refused. 


The  facts  stated  in  the  complainants'  bill  are  briefly  these.  la 
1792,  after  the  incorporation  of  the  Society  for  establishing  use- 
ful Manufactures,  they  purchased  of  one  Cornelius  Van  Winkle 
a  tract  of  land,  on  which  were  a  saw-mill,  grist-mill  and  dam, 
situate  on  the  main  stream  of  the  Passaic  river  at  Paterson,  to- 
gether with  the  bed  of  the  river  and  an  island  in  the  river  adja- 
cent to  the  mill.  The  whole  tract  lies  below  the  falls,  and  below 
the  aqueduct  made  by  the  Society  to  supply  the  mills  and  facto- 
ries in  the  town  with  water.  The  mill  \yas  an  ancient  mill,  and 
had  been  in  operation  at  that  time  upwards  of  twenty-five  years. 
In  November,  1810,  the  mill  and  dam  were  swept  away  by  a  great 
freshet,  and  have  not  since  been  rebuilt,  but  they  intend  shortly  to 
restore  the  dam.  - 

Before  the  dam  was  swept  away,  the  society  brought  the  water 
by  a  canal  from  the  Passaic  above  the  falls,  along  what  is  now 
called  Boudinot  street,  and  there  laid  off  certain  building  lots,  or 
mill  seats,  which  they  offered  to  lease  with  certain  privileges,  and 
with  a  right  to  have  a  head  and  fall  of  water  equal  to  twenty-two 
feet,  which  was  all  that  could  be  granted  or  enjoyed  while  the  Van 
Winkle  dam  was  standing.  They  arranged  the  head  and  fall  in 
such  manner,  as  that  there  should  be  no  interference  between  their 
use  and  right  of  the  water-privileges  at  the  Van  Winkle  mill  and 
the  mills  along  the  canal. 

According  to  this  arrangement  they  proceeded  to  make  leases 
of  the  said  mill  seats  on  Boudinot  street.  In  1807  they  granted 
a  lease  to  John  Clark,  and  one  to  John  Parke,  who  erected  their 
mills  and  water-wheels  with  reference  to  the  Van  Winkle  dam 
below,  and  with  a  full  knowledge  that  only  twenty-two  feet  head 
and  fall  of  water,  were  appropriated  to  the  line'of  mill-seats  on 
Boudinot  street.  In  1808,  they  caused  a  map  to  be  made  of 


OCTOBER  TERM,  1831.  395 

The  Society,  &c.  v.  Haight. 

the  lota  and  premises,  which  has  been  in  use  ever  since  as  the 
public  map  of  the  society  ;  on  which  it  is  expressly  stated  that  each 
of  said  lots  could  have  a  fall  of  water  of  twenty-two  feet. 

It  is  then  further  charged,  that  all  the  subsequent  lessees  have 
known  and  understood  that  only  a  head  and  fall  of  twenty-two 
feet  was  granted  by  the  society  ;  and  such  was  the  understanding 
of  one  Henry  Godwin,  who  on  the  1st  February,  1816,  took  a  lease 
for  the  mill-seat  now  occupied  by  Warren  Haight,  the  defendant. 
That  this  mill-seat  was  first  leased  to  one  Henry  Berry,  in  Octo- 
ber, 1811.  Berry  assigned  his  right  to  Godwin,  and  Godwin 
gave  up  the  assigned  lease  and  took  out  a  new  lease  to  himself. 
That  there  has  never  been  any  controversy  between  the  society 
and  any  of  the  lessees  about  the  head  and  fall,  until  June,  1827, 
when  the  defendant  undertook  to  sink  a  new  wheel-pit  at  the  out- 
let of  the  tail-race  of  his  mill,  to  a  level  with  the  surface  of  the 
water  in  the  Passaic  river,  in  its  natural  current;  and  that  if  not 
restrained  he  will  thereby  obtain  a  head  and  fall  of  twenty-six 
feet  and  more,  and  thereby  deprive  the  society  entirely  of  their 
water  rights  and  privileges,  growing  out  of  the  purchase  of  the 
Van  Winkle  mill  and  dam.  That  as  soon  as  they  were  inform- 
ed of  the  aggression,  they  served  a  written  notice  upon  the  de- 
fendant, stating  that  he  was  encroaching  upon  their  privileges; 
that  he  was  restricted  to  twenty-two  feet  head  and  fall ;  and  that 
they  intended  shortly  to  rebuild  the  Van  Winkle  dam;  and  pro- 
testing against  his  intended  encroachments.  That  notwithstand- 
ing this  notice,  the  defendant  presists  in  his  unlawful  underta- 
king. The  bill  prays  that  he  may  be  restrained  from  further 
proceedings,  and  also  from  continuing  the  improvements  already 
made. 

A  demurrer  to  the  bill  was  overruled,  after  argument,  in  July, 
•JS28. 

The  defendant  in  his  answer,  denies  any  knowledge  of  the 
purchase  from  Van  Winkle;  but  says  he  has  been  informed,  and 
therefore  admits,  that  the  mills  and  dam  said  to  have  been  pur- 
chased as  aforesaid,  were  swept  away  by  a  freshet  in  1810,  and 
that  the  complainants  have  not  rebuilt  them.  He  does  not  admit 
that  they  intend  to  rebuild  them ;  and  denies  that  he  ever  heard 
of  such  intention  until  after  he  had  made  the  improvements  com- 


396  CASES  IN  CHANCERY. 

The  Society,  &c.  v.  Haight. 

plained  of.  He  does  not  admit  that  the  lessees  of  mill-seats  under 
the  society,  were  restricted  to  twenty-two  feet  head  and  fall,  or 
any  other  head  and  fall,  except  such  as  was  limited  by  the  situa- 
tion of  the  canal  and  river;  nor  does  he  believe  there  was  any  such 
understanding;  nor  was  there  any  number  of  feet  guaranteed  to 
the  lessees  by  the  society. 

He  states  further,  that  he  never  heard  of  any  map  of  the  pre- 
mises, until  the  society  had  filed  their  bill.  He  admits,  that  in 
1816  the  complainants  leased  to  Henry  Godwin  a  mill-seat  on 
Boudinot  street,  which  is  now  in  possession  of  the  defendant; 
he  holding  it  by  divers  mesne  assignments  from  Godwin,  who  is 
now  deceased.  That  at  the  time  of  taking  the  lease  there  was 
no  stipulation  that  he  was  to  have  a  head  and  fall  of  only  twenty- 
two  feet;  but  it  was  expressly  agreed  that  he  should  have  the 
lot  from  the  canal  to  the  Passaic,  with  such  head  and  full  as  ex- 
isted between  the  said  canal  and  the  river,  as  it  was  at  the  time. 
He  denies  that  there  was  any  understanding  with  any  of  those 
who  took  leases  after  the  dam  was  carried  away,  that  they  should 
be  limited  to  twenty-two  feet  head  and  fall,  or  that  they  had  any 
notice  that  the  society  intended  to  rebuild  the  dam,  or  to  raise  the 
water  above  what  was  then  its  ordinary  level ;  and  asserts  that 
he  himself  had  no  such  notice,  and  believed  that  he  was  pur- 
chasing the  right  to  use  the  water  on  the  lot  with  all  the  fall  be- 
tween the  canal  and  the  river.  He  says  that  long  before  he  made 
his  improvement,  other  lessees  had  made  similar  improvements  on 
their  property  without  interruption  or  complaint.  He  admits  the 
erection  of  the  building  and  sinking  the  pit;  and  also  the  notice 
given  by  the  complainants,  after  the  pit  was  sunk  and  the  build- 
ing raised  and  nearly  completed  ;  and  insists  upon  the  enjoyment 
of  his  lot  and  privilege,  according  to  the  terms  of  the  lease  under 
which  he  holds. 

Depositions  were  taken  and  proofs  exhibited.  The  case  was 
argued  by 

T.  Frelinghuysen  and  W.  Pennington,  for  the  complainants. 
P.  Dickerson,  for  the  defendant. 


OCTOBER  TERM,  1831.  397 

The  Society,  &c.  v.  Haight. 

Cases  cited  :—Eden  Inj.  140 ;  2  John.  C.  R.  162,  272,  463; 
2  Ver.  R.39-,  Free,  in  Ch.  530;  1  Ves.  543,  188;  3  Atk.  R. 
21;  2  ^rtfc.  #.  83;  2  Dow,  519;  Coop.  Eq.-  R.  77;  16  Ves.  jr. 
257  ;  AngeU  W.  C.  50,  51,  75,  149  ;  2  Stark.  Ev.  386  ;  1  Sound. 
346  ;  2  £«s£.  J2.  358  ;  1  Ves.  jr.  241 ;  1  Jb/m.  C.  R.  349  ;  1  £ro. 
C.  R.  92 ;  2  Ves.  375. 

THE  CHANCELLOR.  The  complainants  have  offered  in  evi- 
dence, the  old  lease  from  the  society  to  Henry  Berry,  and  which 
was  assigned  by  him  to  Henry  Godwin.  It  bears  date  in  1811, 
and  is  for  twenty-one  years,  reserving  a  rent  of  seventy  five  dol- 
lars. It  bounds  on  the  river,  and  there  is  no  limitation  or  cove- 
nant as  to  the  head  and  fall  of  water  between  the  canal  and  the 
river. 

They  have  also  offered  in  evidence  a  counterpart  of  the  lease 
from  the  society  to  Henry  Godwin,  in  1816.  It  is  for  seventeen 
years,  reserving  a  rent  of  ninety  dollars.  This  lease  also  bounds 
on  the  river,  and  is  also  without  restriction  or  limitation  as  to  the 
head  and  fall  of  water. 

If  this  case  is  to  rest  upon  the  lease  between  the  parties,  inde- 
pendently of  any  evidence  that  may  go  to  explain,  modify,  or 
contradict  that  instrument;  and  independently  of  any  agreement 
or  understanding,  which,  although  out  of  the  lease,  may  be  sup- 
posed binding  in  equity,  there  can,  I  thirifc,  be  no  doubt  as  to 
what  ought  to  be  done.  The  lease  is  absolute  on  the  face  of  it. 
It  grants,  for  a  limited  time,  the  use  of  the  whole  property,  for  a 
valuable  consideration.  There  is  neither  doubt  nor  difficulty 
about  it,  and  the  bill  must  be  dismissed  as  entirely  groundless. 
But  if  evidence  is  to  be  admitted  to  show  a  state  of  things  which 
existed  prior  to  the  lease,  or  to  show  the  understanding  of  the 
parties  as  to  certain  rights  directly  affected  by  the  lease,  or  the 
understanding  of  third  persons  in  relation  to  property  similarly 
situated,  it  may  lead  to  a  different  result. 

I  propose,  then,  to  examine  distinctly  the  evidence  offered  by 
the  complainants  in  support  of  their  bill,  independently  of  the 
leases,  and  see  how  far  it  is  admissible  evidence;  and  if  admitted 
either  in  whole  or  in  part,  ascertain  the  effect  of  it  on  the  rights  of 
the  parties. 


398  CASES  IN  CHANCERY. 


The  Society,  Ac.  v.  Haight. 


There  are  three  prominent  matters  relied  on  by  the  complain- 
ants : — 1.  There  was  a  map,  which  they  call  a  public  map,  of 
the  premises,  embracing  all  the  mill  lots  on  Boudinot  street,  of 
which  the  defendant's  is  one.  On  the  face  of  this  paper,  there 
is  a  written  description  of  the  property  embraced  in  it,  to  which 
description  is  added  these  words  :  "  Each  lot  marked  on  this  map 
can  have  a  fall  of  water  of  twenty-two  feet."  This  map  is  proved 
to  have  been  made  for  the  society  about  the  year  1808,  by  Abra- 
ham Willis,  who  was  a  surveyor.  It  was  kept  by  Mr.  Abraham 
Vanhouten,  the  society's  agent ;  and  one  of  the  witnesses  says 
he  saw  it  whenever  he  pleased,  and  that  this  was  supposed  to 
regulate  the  whole.  The  same  witness  says  that  he  thinks  he 
has  seen  the  map  three  or  four  times ;  he  remembers  seeing  it 
twice  in  one  week.  He  saw  it  at  Mr.  Vanhouten's  house,  and  on 
the  lot,  and  at  the  house  of  the  surveyor  while  he  was  making 
it ;  since  which  he  has  not  seen  it  until  lately.  Several  saw  it 
about  the  time  the  survey  was  made.  .Another  witness  testifies 
to  the  making  of  the  map  by  Willis.  He  saw  it  directly  after  it 
was  made,  and  has  seen  it  frequently  since,  until  within  some 
years  last  past.  He  has  not  seeu  it  lately,  having  had  no  occa- 
sion to  see  it.  After  the  map  was  made  he  always  referred  to  it  as 
his  guide. 

It  is  contended  that  this  map  is  evidence  in  relation  to  the  con- 
tracts, or  to  the  rights  of  the  parties  under  the  contracts ;  and 
that,  according  to  the  map,  the  lessees  are  entitled  to  twenty-two 
feet  head  and  fall,  and  no  more.  Taking  this  to  be  the  case,  is  it 
evidence  to  contradict  the  lease?  If  such  is  to  be  the  effect  of  it, 
I  am  at  a  loss  to  perceive  how  it  can  be  admitted.  The  general 
rule  is  against  the  admission.  It  is  clear  and  explicit,  and  has 
been  adopted  upon  great  deliberation.  The  difficulty  generally 
is,  not  as  to  the  rule,  but  the  exceptions  to  it ;  for  like  all  other 
general  rules  it  has  its  exceptions.  In  cases  of  fraud,  mistake, 
surprise,  or  accident,  clearly  proved,  parol  evidence  has  been 
admitted.  They  raise  an  equity  on  a  ground  collateral  to  the 
deed,  and  "  may  be  holden  to  vary  it  accordingly  : "  Rich  v.  Jack- 
son, 4  Bro.  C.  C.  419,  in  notis.  But  here  there  is  no  such 
ground  laid.  The  complainants  do  not  invoke  aid  on  either  of 
these  heads  of  equity  ;  nor  do  they  seek  it  because  of  any  omis- 


OCTOBER  TERM,  1831.  399 

,        The  Society,  &c.  v.  Haight. 

sion  in  preparing  the  lease.  But  they  attempt  to  bring  in  this 
map,  and  the  facts  that  have  been  testified  to  in  relation  to  it,  as 
evidence  of  an  agreement  or  understanding,  as  to  the  precise 
head  and  fall  of  water  that  the  lessees  were  to  enjoy,  and  that 
agreement  or  understanding  made  or  had  at  the  time  the  original 
agreement  or  lease  was  entered  into ;  for  if  not  then,  when  was 
it?  In  this  attempt  they  are  opposed  by  well  settled  principles. 
Where  there  is  a  clear,  subsequent  and  independent  agreement, 
varying  the  original  one,  evidence  of  it  may  be  received  ;  but  not 
where  it  is  of  a  matter  passing  at  the  same  time  with  the  written 
agreement.  In  Movan  v.  Hayes,  1  John.  C.  R.  343,  the  chan- 
cellor says,  the  rule  is  established  in  this  court,  as  well  as  at  law, 
that  parol  evidence  is  inadmissible  to  disannul,  or  substantially 
vary  a  written  agreement,  except  on  the  ground  of  mistake  or 
fraud ;  and  the  cases  of  Irnharn  v.  Child,  1  Bro.  C.  C.  92,  and 
Hare  v.  Skearwood,  1  Ves.  jr.  241,  are  cited.  It  is  important, 
too,  to  notice  the  fact,  that  this  agreement  or  understanding,  so 
far  a^  it  is  to  be  inferred  from  the  existence  of  the  map,  is  ex- 
pressly denied  in  the  answer,  in  which  the  defendant  swears  that 
he  never  heard  of  any  such  map  until  after  the  filing  of  the  bill. 
Such  denial  shows  more  clearly  the  propriety  of  excluding  the 
evidence,  and  adds  strength  to  the  rule. 

2.  A  second  matter  relied  on,  is  the  alleged  general  understan- 
ding of  the  lessees  on  that  tier  of  mill-seats,  that  their  right  was 
limited  to  twenty-two  feet  head  and  fall. 

On  this  subject  one  of  the  witnesses,  Clark,  who  leased  in 
1806,  before  the  carrying  away  of  the  Van  Winkle  dam,  testi- 
fies, that  he  thinks  it  was  generally  understood,  after  witness  took 
his  lease,  that  the  lots  to  be  leased  on  that  tier  had  a  head  and 
fall  of  twenty-two  feet.  He  was  frequently  asked,  about  this  time, 
what  was  the  head  and  fall,  and  he  always  informed  inquirers 
that  it  was  twenty-two  feet.  When  he  made  his  agreement  with 
Mr.  Boudinot,  he  was  to  have  twenty-two  feet  head  and  fall,  and 
it  was  so  expressed  in  the  agreement,  which  he  gave  up  to  the 
society  fourteen  or  fifteen  years  ago.  •  This  agreement  was  before 
the  map,  and  that  fact  witness  states  as  the  reason  why  it  was 
expressed  in  the  agreement.  Charles  Kinsey,  another  witness, 
states,  that  he  lived  in  Paterson  when  the  mill  lots  were  laid  out, 


400  CASES  IN  CHANCERY. 

The  Society,  &c.  v.  Haight. 

and  always  understood  from  common  report  that  they  had  twenty- 
two  feet  head  and  fall.  He  has  been  inquired  of  by  captain  Ward 
and  others  on  the  subject,  and  always  told  them  what  was  the  com- 
mon understanding.  John  Parke  says,  he  has  always  considered 
that  the  lots  on  Boudinot  street  had  twenty-two  feet  head  and  fall, 
and  always  told  others  so.  He  thought  himself  entitled  to  no 
more,  and  that  if  he  had  not  so  much  he  would  be  entitled  to  a 
remuneration. 

Admitting  now,  for  the  sake  of  the  argument,  that  this  evidence 
proves  a  general  understanding  that  the  lessees  on  that  tier  of  lots 
were  entitled  to  no  more  than  twenty-two  feet  of  water,  (which  I 
think  it  does  not,)  can  such  general  understanding  alter  the 
tenor  of  a  solemn  instrument?  Is  it  not  altogether  too  vague 
and  unsatisfactory  ?  There  are  some  instances,  it  is  true,  where 
a  general  understanding  and  practice  may  be  set  up  to  explain  a 
written  agreement;  but  it  must  amount  to  a  custom,  and  be 
pleaded  as  a  custom  from  time  immemorial.  Such  was  the  case 
of  Wigglesworth  v.  Dallison,  Doug.  201  ;  where  the  custom 
of  the  country  in  favor  of  taking  the  way-going  crop  by  a 
tenant,  was  set  up  and  maintained.  But  even  such  custom  can- 
not be  insisted  on -if  it  be  excluded  by  the  terms  of  the  agree- 
ment. 

This  evidence  appears  to  me  to  come  precisely  within  the  rule 
applied  to  the  evidence  respecting  the  map.  It  proves,  if  any 
thing,  an  agreement  between  the  parties,  or  something  in  the 
nature  of  an  agreement,  made  at  the  time  of  the  lease;  and, 
affecting  the  rights  of  parties  under  the  lease,  it  is  clearly  inad- 
missible. 

3.  A  third  matter  relied  on  by  the  complainants  is,  that  Henry 
Godwin,  under  whom  the  defendant  holds  by  assignment,  knew 
of  this  general  understanding,  and  was  bound  by  it;  and  that,  con- 
sequently, his  assignee  is  also  bound. 

The  only  evidence  on  this  subject  is  that  of  Clark,  who  says 
he  heard  Godwin  say  he  had  twenty-two  feet  head  and  fall;  and 
he  asked  deponent  if  he  had  taken  the  height,  and  deponent  said 
he  had,  that  it  was  twenty-two  feet.  This  was  while  Godwin 
occupied  the  lot,  not  when  he  made  the  agreement  and  took  the 
lease;  and  being  after  the  lease  was  made,  if  it  proved  "a  clear 


OCTOBER  TERM,  1831.  401 

The  Society,  <fec.  v.  Haight. 

and  independent  agreement,  varying  the  lease,"  it  might  be  ad- 
missible. But  it  proves  no  such  thing.  The  deduction  to  be 
drawn  from  it,  is,  that  Godwin  had  satisfied  himself  that  he  bad 
twenty-two  feet,  head  and  fall ;  not  that  he  had  no  more,  or  was 
entitled  to  no  more,  or  that  there  was  an  agreement  of  any  kind 
whatever. 

My  conclusion  is,  that  no  part  of  this  testimony  can  be  received, 
to  vary,  or  alter,  or  contradict,  the  plain  tenor  of  a  written  agree- 
ment or  lease. 

It  was  contended,  however,  by  one  of  the  counsel  of  the  com- 
plainants, that  the  evidence  does  not  contradict  the  lease,  or  vary 
its  terms,  inasmuch  as  the  lease  is  silent  as  to  how  much  head 
and  fall  the  party  is  entitled  to.  The  lease  grants  to  the  lessee 
the  one  half  of  all  that  lot  of  land,  beginning,  &c.,  bounded  on  the 
south  by  the  canal  iu  Boudinot  street,  west  by  a  lot  occupied  by 
Alvin  Wilson,  north  by  the  Passaic  river,  and  on  the  east  by  Crane's 
lot;  together  with  the  privilege  of  taking  water  from  the  canal 
in  Boudinot  street  equal  to  seventy-two  square  inches,  for  the  use 
of  a  fulling-mill,  &c. :  to  have  and  to  hold,  &c.  By.  virtue  of 
this  grant,  the  lessee  takes  the  lot  from  the  canal  to  the  river 
without  any  restriction  whatever.  If  the  lessors  were  to  set  up> 
an  agreement  or  understanding  that  the  lessee  was  not  to  use  the- 
lot  within  twenty  feet  of  the  river,  would  it  not  be  contrary  to. 
the  tenor  of  the  lease  ?  Would  it  not  impose  a  restriction  by. 
parol,  where  none  existed  by  the  covenant?  So  with  regard  to. 
the  water.  The  lessee  is  to  have  seventy-two  square  inches  of 
water  from  the  canal.  If  there  were  no  restrictions  in  the  lease, 
he  might  use  the  water  for  any  lawful  purpose  ;  but  by  the  lease 
it  is  to  be  used  for  milling  purposes  only.  This  was  a  restriction 
the  company  had  a  right  to  impose,  and  the  lessee  was  at  liberty 
to  agree  to  it  if  he  thought  proper ;  and  having  done  so,  he  is 
bound  by  it.  The  use  of  the  water  is  restricted  in  no  other  way 
by  the  terms  of  the  lease.  But  if  an  agreement  is  set  up,  re- 
stricting the  lessee  to  twenty-two  feet  head  and  fall  of  water, 
•  when  by  the  lease  he  is  entitled  to  twenty-six  feet,  are  not  the 
terms  of  the  lease  altered,  and  the  party's  rights  impaired  ?  Will 
he  enjoy  what  by  the  terms  of  the  lease  he  is  at  liberty  to  enjoy  ? 
The  matter  is  too  plain  for  controversy.  Where  there  is  a  deed  in, 

2c 


402  CASES  IN  CHANCERY. 

The  Society,  &c.  T.  Haight, 

writing,  says  Ld.  Eldon,  it  will  admit  of  no  contract  that  is  not 
part  of  the  deed.  Whether  it  adds  to  or  deducts  from  the  contract, 
it  is  impossible  to  introduce  it  on  parol  evidence:  Irnham  v.  Child 
and  al.,  1  Ves.  jr.  93. 

Upon  the  whole,  I  entertain  no  doubt  that  evidence,  such  as  the 
complainants  seek  to  offer,  would  vary  the  terms  of  the  agreement, 
and  is  therefore  inadmissible. 

I  would  observe,  further,  that  if  I  should  be  mistaken  in  my 
conclusions  on  the  questions  of  evidence,  and  if  the  whole  of  the 
testimony  offered  by  the  complainants  was  competent,  it  would  not, 
in  my  opinion,  vary  the  result.  The  bill  charges  that  the  knowl- 
edge and  understanding  of  all  the  lessees  was  universal,  that  only 
a  head  and  fall  of  twenty-two  feet  was  granted.  This  should  be 
fully  and  clearly  proved.  To  vary  the  written  agreement,  the 
parol  proof  should  be,  if  not  so  formal,  at  least  as  satisfactory  to 
the  mind  of  the  court,  as  the  evidence  furnished  by  the  deed.  I 
do  not  think  the  allegation  is  satisfactorily  sustained  by  the  evi- 
dence. The  map  certainly  does  net  prove  it.  In  describing  the 
property,  it  is  said,  "  each  lot  can  have  a  head  and  fall  of  twenty- 
two  feet."  Does  this  necessarily  mean,  it  shall  have  that  precise 
quantity,  and  no  more?  Does  it  mean  anything  more,  than  that 
each  lot,  from  its  relative  position  to  the  canal  at  one  end,  and 
the  river  at  the  other,  is  capable  of  having  on  it  a  head  and  fall  of 
twenty-two  feet  at  least  ?  Without  deciding  on  the  import  of  the 
description,  it  is  sufficient  to  say,  that  if  there  be  doubt,  reasonable 
doubt,  it  is  conclusive  against  the  evidence  ;  it  can  have  no  effect 
as  against  the  lease. 

And  so  with  regard  to  the  general  understanding,  as  proved  by 
the  witnesses  ;  when  the  testimony  is  examined,  it  turns  out  to 
be  simply  this :  that  it  was  generally  understood  that  the  lota 
leased  on  that  tier  had  a  head  and  fall  of  twenty-two  feet.  Mr. 
Kinsey  mentions  this  common  report  in  his  evidence,  and  says  it 
originated  from  the  fact  that  the  engineers,  in  taking  the  level, 
reported  that  there  would  be  a  head  and  fall  of  that  amount  be- 
tween the  canal  and  the  river.  This  is  mere  description  ;  and 
though  the  knowledge  of  it  may  be  brought  home  to  Godwin,  it 
cannot  amount  to  an  agreement  that  will  vary  his  rights  under 
the  lease.  One  of  the  old  witnesses  says,  he  considered  himself 


OCTOBER  TERM,  1831.  403 

Executors  of  Conovers  v.  Conover  et  al. 

entitled  to  only  twenty-two  feet ;  but  he  does  not  say  that  this  was 
a  common  understanding,  and  especially  among  those  who  took 
leases  after  the  dam  was  swept  away. 

It  would  be  a  source  of  regret  to  the  court,  if  the  decision  in  this 
case  should  result  in  any  serious  injury  to  the  complainants  ;  but 
feeling  cannot  be  suffered  to  have  any  operation  in  the  administra- 
tion of  the  law.  The  complainants  will  remember,  that  it  grows 
out  of  their  own  act.  They  had  an  unquestionable  right  to  the 
mill-seat  below;  but  the  mill  and  dam  being  carried  away,  they 
had  the  same  right  to  abandon  it  if  they  thought  proper  so  to  do. 
That  such  an  abandonment  has  actually  been  made,  is  not  necessary 
for  me  to  decide ;  but  the  fact,  that  a  grant  has  been  made  by  the 
society,  of  rights  and  privileges  inconsistent  with  those  here  as- 
sumed by  themselves,  is  sufficient  evidence  of  such  abandonment, 
in  favor  of  the  grantee,  to  protect  him  from  the  interference  of 
this  court,  by  injunction. 

Let  the  bill  be  dismissed,  with  costs. 

CITED  in  Stewart  v.  Scudder,  4  Zab.  105. 


JOSEPH  CONOVER  AND  JOHN  S.  REID,  SURVIVING  EXECUTORS 
OF  WILLIAM  P.  CONOVER,  DEC'D,  v.  RICHARD  CONOVER  ET 
AL..  AND  JOSEPH  CONOVER  AND  JOHN  8.  REID,  SURVIVING 
EXECUTORS  OF  THEODORUS  CONOVER,  DEC'D,  v.  RICHARD 
CONOVER  ET  AL. 

Where  a  party  has  occupied  premises  belonging  to  another,  it  follows,  as  a  mat- 
ter of  course,  that  he  is  bound  to  pay  for  the  use  and  occupation  ;  unless  he 
can  show  an  agreement  to  the  contrary,  or  a  satisfactory  reason  why  he 
should  not  be  charged. 

Where  a  plaintiff  sues  both  at  law  and  in  equity  for  the  same  thing,  he  will,  after 
answer  filed,  be  put  to  his  election  in  which  court  he  will  proceed ;  and  if  he 
elect  to  proceed  at  law,  or  neglect  to  make  his  election  iu  proper  time,  his 
bill  will  be  dismissed. 

Where  no  steps  have  been  taken  in  the  suit  at  law,  but  testimony  has  been  taken 
on  both  sides  in  this  court  relative  to  the  same  claim,  and  the  suit  has  pro- 


404  CASES  IN  CHANCERY. 

Executors  of  Conovers  v.  Conover  et  al. 

caeded  in  this  court  without  objection ;  the  complainant  will  be  considered 
as  having  made  his  election,  and  any  farther  proceedings  at  law  will  be 
stayed  by  injunction. 

A  claim  for  rent  due  the  testator,  not  having  been  mentioned  in  the  inventory, 
or  the  executors  having  settled  their  account  in  the  orphan's  court,  and  on 
the  credit  side  prayed  allowance  for  it,  as  not  being  collected ;  cannot  con- 
clude them  as  against  the  debtor :  they  may  still  recover,  and  in  case  of  re- 
covery, they  are  liable,  notwithstanding  the  account,  to  those  beneficially 
interested. 

The  rule  in  courts  of  equity  now  is,  that  they  will  take  notice  of  the  statute  of 
limitations,  and  apply  it  in  the  same  manner  as  courts  of  law. 

To  take  a  case  out  of  the  statute,  when  there  is  no  express  promise  to  pay,  but 
one  is  to  be  raised  by  implication  of  law,  the  acknowledgment  of  the  party 
ought  to  contain  an  unqualified  and  direct  admission  of  a  previous  subsisting 
debt  which  the  party  is  liable  and  willing  to  pay.  If  there  be  accompany- 
ing circumstances  which  repel  the  presumption  of  an  intention  or  willing- 
ness to  pay,  or  if  the  expressions  be  vague  and  equivocal,  leading  to  no  cer- 
tain conclusion,  the  evidence  ought  not  to  be  admitted. 

When  executors  have  settled  their  account  in  the  orphan's  court,  if  there  be  no 
evidence  of  fraud  or  mistake,  this  court  will  not  disturb  the  settlement ;  but 
take  the  balance  stated  in  the  account  to  be  -the  true  balance  in  the  hands  of 
the  executors. 

The  testator  devised  a  farm  charged  with  a  sum  of  money  for  the  benefit  of  hia 
estate,  and  made  the  devisee  one  of  his  residuary  legatees ;  there  was  also  a 
demand  for  rent  due  from  the  devisee  to  the  testator.  The  devisee  had  Fold 
part  of  the  land  devised,  and  a  judgment  at  law  had  been  obtained  against 
him.  Upon  a  bill  filed  by  the  executors  against  the  devisee  and  judgment 
creditor,  to  raise  the  sum  charged  on  the  land  and  the  amount  due  for  rent; 
the  residuary  share  due  the  devisee  is  first  to  be  deducted  from  the  amount 
charged  on  the  land,  and  the  land  held  chargeable  with  the  balance;  that 
part  of  the  land  remaining  unsold  to  be  first  liable,  and  the  other  part  re- 
sorted to  only  to  supply  a  deficiency  ;  the  judgment  to  be  next  satisfied,  and 
then  the  demand  for  rent. 

"Where  two  bills  were  filed  by  the  executors  of  two  several  testators,  who  were 
tenants  in  common  of  all  their  property,  and  devised  it  to  the  same  persons ; 
where  the  parties  interested,  and  their  rights,  were  the  same  under  both 
wills;  the  two  suits,  on  their  hearing,  may  be  consolidated,  so  that  one  in- 
vestigation and  report  of  the  master,  and  one  decree,  may  settle  the  whole. 

"Where  the  statute  of  limitations  is  insisted  on  by  the  answer,  and  there  is  no 
evidence  of  a  promise,  to  take  the  case  out  of  the  statute,  the  master  di- 
rected, in  taking  an  account  of  rent  due  for  use  and  occupation,  to  exclude 
all  items  over  six  years  standing  at  the  time  of  the  commencement  of  the 
suit. 

William  P.  Conover  and  Theodoras  Conover,  of  the  county 
of  Monmouth,  were  brothers,  living  together,  and  owning  and 


OCTOBER  TERM,  1831.  405 

Executors  of  Conovers  v.  Conover  et  al. 

possessing  all  their  property,  real  and  personal,  as  tenants  in 
common.  William  married  and  had  children;  Theodorus  was 
never  married.  On  the  sixteenth  day  of  October,  1815,  each  of 
them  made  a  last  will  and  testament.  William  gave  his  half 
of  the  property  to  his  four  children,  in  certain  portions1;  and 
Theodorus  gave  his  half  to  the  same  persons.  The  instruments 
were  as  nearly  alike  as  they  could  be  drawn,  and  were  so  in- 
tended to  be.  By  these  wills  each  testator  devised  to  Richard 
Conover,  one  of  the  defendants,  his  moiety  of  the  farm  or  plan- 
tation they  had  purchased  of  Barnes  H.  Smock ;  each  charging 
the  moiety  devised  with  the  sum  of  twelve  hundred  and  fifty 
dollars,  for  the  benefit  of  his  estate,  payable  within  two  years 
after  the  decease  of  the  survivor.  Richard  and  the  other  chil- 
dren of  William  are  residuary  legatees  under  both  wills.  Wil- 
liam P.  Conover  died  in  1823,  and  Theodorus  in  1825.  In  1829 
bills  were  filed  by  the  executors  in  each  case  against  Richard 
Conover  and  wife,  to  recover  the  amount  so  charged  on  the  laud ; 
and  James  R.  Conover,  being  a  purchaser  under  Richard,  and 
Job  Throckmorton,  being  a  judgment  creditor,  were  made  par- 
ties. 

In  the  answer  to  these  bills,  Richard  admits  the  charge  upon, 
the  property  devised  to  him,  but  insists,  that  as  it  appears  by  the 
settlement  of  the  estate  in  the  orphans'  court,  there  is  a  large  sum, 
viz.  one  thousand  eight  hundred  and  eigkty-nine  dollars  and 
eighty  cents  due  him  as  one  of  the  residuary  legatees  under  the 
will,  which  sum  is  now  in  the  hands  of  the  executors ;  he  is  enti- 
tled to  have  that  sum  deducted  from  the  charge  against  him  in  the 
wills ;  and  proffers  himself  ready  to  pay  the  balance,  whatever  it 
may  be  found  to  be  ou  a  fair  account. 

To  this  answer  exceptions  were  taken  on  various  grounds,  bui 
principally  on  the  ground  that  the  defendant  claimed  to  have  his 
distributive  share  deducted  from  the  amount  charged  against  his 
land  ;  the  complainants  alleging  that  they  had  accounts  or  de- 
mands against  him  for  rent,  which  should  be  set  off  against  his 
distributive  share ;  and  that  the  defendant's  claim  could  only  be 
brought  up  by  filing  a  cross-bill.  The  exceptions  were  overruled, 
and  thereupon  the  complainants  amended  their  bills,  by  inserting 
a  claim  for  rent  for  a  number  of  years  prior  to  the  death  of  the 


406  CASES  IN  CHANCERY. 

• 

Executors  of  Conovers  v.  Conover  et  al. 

testators,  during  which  time  Richard  occupied  the  farm  which  was 
afterwards  devised  to  him.  To  these  amended  bills  the  defendant 
has  answered.  He  admits  the  possession,  but  denies  that  he  was 
to  pay  any  rent;  and  sets  up  the  statute  of  limitation  as  a  bar 
against  any  such  claim.  He  also  insists,  that  if  rent  is  to  be 
charged  against  him,  he  is  entitled  to  compensation  for  services. 
Testimony  has  been  taken  on  both  sides.  The  cases  were  argued 
together,  by 

Randolph  and  Southard,  for  complainants ; 
Ryall  and  Wall,  for  the  defendants. 

Cases  cited  :— 1  Fonb.  E.  461 ;  3  John.  R.  566  ;  8  Com.  D.  108 ; 
1  Mad.  C.  79,  202 ;  Rev.  L.  787 ;  Mitf.  P.  200-1-4  ;  3  P.  Wms. 
R.  90;  2  Cox's  C.  #.118;  4  G-anch's  R.  415;  6  Ves.jr.  586;  9 
Ves.  jr.  71 ;  10  Ves.  jr.  93;  Coop.  E.  252 ;  3  Atk.  R.I^ZLd. 
Raym.  1204;  20  John.  R.  576;  11  Ves.jr.  24. 

THE  CHANCELLOR.  There  is  no  doubt  as  to  the  charge  on  the 
lands.  It  is  admitted  on  all  hands,  that  the  two  thousand  five 
hundred  dollars  is  due,  and  must  be  satisfied. 

The  principal  matter  in  dispute  is  the  charge  for  rent. — 
When  Richard  'first  occupied  the  farm  which  was  afterwards  de- 
vised to  him,  he  occupied  it  in  connection  with  his  brother  Wil- 
liam, now  deceased,  and  there  is  some  evidence  to  show  that  they 
made  some  render,  in  kind,  for  the  use  of  the  property.  After 
the  death  of  William,  which  was  in  1814,  Richard  enjoyed  the 
property  alone,  without  rendering  rent  to  either  of  the  testators ; 
and  the  question  is,  whether  he  is  to  be  charged.  He  alleges  that 
it  was  a  mere  gratuity  and  benevolence  on  the  part  of  his  father 
and  uncle ;  that  he  made  no  contract  or  agreement  of  any  kind 
to  pay  rent,  and  that  none  was  ever  demanded  in  their  life-time : 
that  Joseph,  the  executor,  occupied  a  part  of  the  testator's  pro- 
perty without  paying  rent,  and  also  Samuel  another  part.  On 
the  other  hand  it  is  contended  that  the  property  occupied  by 
Richard  was  much  more  valuable  than  that  occupied  by  Joseph 


OCTOBER  TERM,  1831.  407 


Executors  of  Conovers  v.  Conover  et  al. 


or  by  Samuel;  that  the  rent  demanded  (fifty  pounds  per  annum) 
is  far  short  of  the  actual  value  of  the  premises,  and  just  enough 
to  equalize  among  the  brothers  the  favors  of  the  testators  in  their 
life-time.  That  Richard  is  charged  with  the  rent  in  the  account 
book  of  William  P.  Conover;  and  that  whether  any  contract  be 
proved  or  not,  he  is  bound  on  general  principles  to  pay  for  the  oc- 
cupancy, unless  he  can  show  satisfactorily  that  he  should  be  ab- 
solved from  the  payment. 

On  examining  the  evidence,  I  do  not  find  any  to  warrant  the 
conclusion,  that  there  was  an  agreement,  in  express  terms,  to 
pay  rent,  or  any  acknowledgment  on  the  part  of  Richard  which 
can  be  considered  as  binding  him  to  pay.  Most  of  it  rests  upon 
hearsay  or  presumption,  except  that  of  Mrs.  Alice  Conover,  which 
is  altogether  inadmissible  on  the  ground  of  direct  interest  in  her 
husband,  who  is  one  of  the  complainants  and  residuary  legatees. 
An  account  book  has  been  produced  by  the  complainants,  which 
is  proved  to  have  been  the  book  of  William  P.  Conover,  one  of 
the  testators.  In  this  book  there  is  a  charge,  or  memorandum 
purporting  to  be  a  charge  against  Richard,  for  rent,  at  one  hun- 
dred and  twenty-five  dollars  per  year,  commencing  in  1815.  It 
is  continued  in  the  hand-writing  of  William  P.  Conover,  year 
after  year,  up  to  April,  1822.  In  1823  William  died,  and  the 
charge  for  the  rent  due  in  April,  1823,  is  made  in  the  hand-wri- 
ting of  Joseph  Conover,  the  executor.  He  is  charged  also,  in 
the  same  book,  by  Joseph  Conover,  with  a  moiety  of  the  rent  for 
1824  and  1825,  up  to  the  death  of  Theodorus  Conover,  which 
took  place  in  1825.  I  have  not  much  confidence  in  this  book.  It 
is  a  very  ancient  one,  and  liable  to  many  exceptions ;  and  if  this 
were  a  claim,  the  existence  or  validity  of  which  was  to  depend 
altogether  upon  the  book,  I  should  incline  to  dismiss  it  at  once. 
But  it  appears  to  me  that  the  claim  for  rent  rests  upon  much 
higher  ground.  The  occupation  of  the  premises  is  proved  be- 
yond doubt:  that  the  property  at  the  time  belonged  to  the  testa- 
tors, is  equally  true ;  and  it  follows  as  a  matter  of  course,  that 
the  party  in  possession  is  bound  to  pay  for  the  use  and  occupa- 
tion, unless  he  can  show  an  agreement  to  the  contrary,  or  some 
satisfactory  reason  why  he  should  not  be  charged.  The  burthen 
of  the  proof  rests  upon  the  defendant,  who  would  resist  the 


408  CASES  IN  CHANCERY. 

Executors  of  Conovers  v.  Conover  et  al. 

claim  :  and  the  question  is,  whether  such  proof  has  been  made. 
He  offers  no  direct  evidence,  but  argues  that  the  claim  is  unfound- 
ed, from  the  fact  that  no  rent  was  ever  exacted  of  him  in  the  life- 
time of  the  testators.  That  the  other  brothers,  who  occupied 
other  separate  portions  of  the  real  estate,  paid  no  rent  whatever. 
And  that  the  testators,  by  their  wills,  had  given  to  them  seve- 
rally the  tracts  which  they  had  long  occupied,  saying  nothing  of 
any  demand  against  them  or  any  of  them.  There  is  weight  in 
the  argument,  but  it  does  not  satisfy  my  mind  as  sufficient  en- 
tirely to  repel  the  claim.  It  may  be  true  that  no  rent  was  exact- 
ed of  him  by  the  testators  while  living,  and  yet  be  equally  true 
that  they  intended  him  to  account  for  it  after  their  death.  And  it 
may  in  like  manner  be  true  that  the  other  brothers  were  not  re- 
quired to  pay  rent,  and  yet  be  perfectly  just  that  Richard  should 
pay  a  small  annual  compensation;  for  the  property  he  possessed 
is  represented  to  have  been  much  the  most  valuable;  and  it  may 
be  that  a  strict  regard  to  justice  required  that  the  testators  should 
charge  a  small  amount  of  rent  to  make  hi'm  equal  with  the  other 
brothers,  who  were  also  sharers  of  their  bounty.  The  fact  that 
this  property  was  charged  with  the  payment  of  a  considerable 
sum  of  money,  viz.  two  thousand  five  hundred  dollars,  and  that 
Samuel's  share  was  charged  with  only  one  hundred  and  twenty- 
five  dollars,  and  that  nothing  was  charged  on  Joseph's  share, 
but  that  on  the  contrary  some  items  of  personal  property  were 
given  to  Joseph  with  the  land,  over  and  above  his  equal  part  of 
the  residuum;  proves  nothing  in  favor  of  the  defendant.  It 
appears  to  me  the  conclusion  to  be  deduced  from  it  is  against 
him.  For  if  the  testators  intended  to  leave  them  equal,  and  such 
appears  to  have  been  the  intention ;  and  if  that  could  only  be 
done  by  imposing  a  charge  of  two  thousand  five  hundred  dollars 
on  the  share  of  Richard,  it  is  evident  that  the  same  principle  of 
equality  would  have  caused  them  to  charge  him  a  rent  for  the 
enjoyment  of  his  share  while  they  were  yet  living,  though  the 
others  paid  nothing.  Equal  justice  was  thereby  awarded  to  all. 
I  incline,  therefore,  to  the  opinion,  that  something  in  the  way  of 
rent  is  to  be  charged  against  Richard ;  and  I  think  that  as  to  the 
amount  of  it,  the  court  should  be  governed  by  the  amount  char- 
ged in  the  book.  It  may  not  be  the  full  value,  but  it  certainly 


OCTOBER  TERM,  1831.  409 

Executors  of  Conovers  v.  Conover  et  al. 

is  not  more.  And  being  the  amount  intended  by  the  testators,  the 
complainants  can  reasonably  ask  nothing  more. 

Some  additional  objections  have  been  made  to  the  claim  for 
rent.  One  is,  that  this  court  can  take  no  cognizance  of  it  at  this 
ime,  inasmuch  as  there  is  a  suit  for  the  same  subject  matter  pend- 
ing undetermined  between  the  same  parties,  in  the  court  of  com- 
mon pleas  of  the  county  of  Monmouth.  This  is  set  up  and  in- 
sisted on  in  the  answer,  in  lieu  of  the  formal  plea  in  bar.  The 
practice  is,  where  the  party  sues  both  at  law  and  in  equity  for  the 
same  thing,  he  will  be  put  to  his  election  in  which  court  he  will 
proceed,  but  need  not  make  his  election  until  after  the  defendant 
has  answered.  If  he  elect  to  proceed  at  law,  or  neglect  to  make 
his  election  in  proper  time,  his  bill  is  to  be  dismissed  :  Jones  v. 
Earl  of  Stra/ord,  3  P.  Wms.  90 ;  note  B.  Anon.,  1  Ves.  jr.  91 ; 
Miff.  P.  91 ;  Rodger*  v.  Vosburgh,  4  John.  C.  E.  84 ;  Boyd  v. 
Heingelman,  1  Ves.  and  B.  381 ;  Beam.  P.  in  E.  150,  151.  In 
this  case  there  has  been  no  order  putting  the  party  to  his  election, 
nor  any  application  for  such  order  so  far  as  I  am  informed.  The 
proceedings  in  this  respect  have  not  been  altogether  formal,  but  an 
election  has  been  made  in  fact.  No  steps  have  been  taken  in  the 
suit  at  law.  Testimony  has  been  taken  on  both  sides  in  this  court 
relative  to  the  very  claim  for  which  the  action  was  brought,  and 
the  suit  has  proceeded  here  without  objection.  I  think  it  would 
be  entirely  too  technical,  under  these  circumstances,  to  say  that  the 
complainants  should  be  turned  out  of  this  court  and  driven  to 
pursue  their  remedy  at  law.  They  will  be  considered  here  as  hav- 
ing made  their  election,  and  must  abide  the  result.  Any  further 
proceeding  at  law  will  be  stayed  by  injunction. 

It  does  not  appear  to  me  to  be  a  sound  objection  against  this 
claim  for  rent,  that  there  is  no  mention  made  of  it  in  the  appraise- 
ment of  Theodorus's  estate.  It  may  have  been  omitted  because 
charged  in  the  inventory  of  William's  property  ;  and  if  omitted 
for  any  other  cause,  it  constitutes  no  bar  to  a  claim  properly  es- 
tablished. As  the  whole  claim  was  embraced  in  the  first  inven- 
tory, it  was  perhaps  proper  to  make  no  mention  of  it  in  the  se- 
cond. Nor  is  it  any  better  objection,  that  the  accounts  have  been 
settled  in  the  orphan's  court,  and  that  in  the  accounts  the  execu- 


410  CASES  IN  CHANCERY. 

Executors  of  Conovers  v.  Conover  et.al. 

tors  are  not  charged  with  this  rent.  On  inspecting  the  accounts  it 
appears,  that  in  making  the  settlement  the  personal  property  of 
both  decedents  was  brought  together,  and  the  whole  put  in  one  ac- 
count. The  executors  charge  themselves  with  the  whole  amount  of 
both  inventories,  and  on  the  credit  side  of  the  account  pray  allowance 
for  the  rent,  as  not  being  collected.  I  take  this  to  be  strictly  cor- 
rect. It  certainly  cannot  conclude  them  as  against  the  debtor  ;  it 
bars  no  right  as  against  him.  They  may  still  recover,  and  in  case 
of  recovery  they  are  liable,  notwithstanding  the  account,  to  those 
who  are  beneficially  interested  in  the  sum  recovered. 

But  it  does  not  follow  that,  because  rent  is  to  be  accounted  for, 
that  therefore  the  whole  sum  charged  against  the  defendant  for 
ten  or  fifteen  years  is  to  be  allowed.  The  defendant  has  prayed, 
in  his  answer,  to  be  admitted  to  the  benefit  of  the  statute  of  limi- 
tations, and  I  think  with  very  great  propriety.  It  is  unnecessary 
to  discuss  the  point,  how  far  courts  of  equity  are  bound  by  the 
statute.  The  rule,  as  now  received,  is,  that  they  will  take  notice 
of  it,  and  apply  it  in  the  same  manner  as  courts  of  law.  Such 
has  been  the  admitted  doctrine  of  this  court  in  former  cases,  and 
I  see  no  cause  to  question  its  propriety  or  soundness.  There  is 
nothing  in  this  demand  that  can  exempt  it  from  the  operation  of 
the  statute.  It  is  not  a  trust,  but  in  the  nature  of  a  legal  demand, 
which  might  have  been  prosecuted  in  the  common  law  courts, 
and  to  which  the  statute  of  limitations  might  have  been  pleaded. 
It  is  said,  however,  that  this  case  is  taken  out  of  the  operation  of 
the  rule,  by  the  admissions  of  the  defendant  in  his  answer,  and 
by  the  evidence.  The  defendant,  by  his  answer,  admits  the 
possession,  but  denies  in  the  most  unqualified  terms  the  existence, 
either  now  or  at  any  pther  time,  of  the  debt  charged  against  him. 
Neither  in  the  answer  or  the  testimony,  is  there  any  thing  to 
show  an  admission  of  the  debt  on  the  part  of  the  defendant. 
What  promise  or  admission  shall  be  sufficient  to  take  a  case  out 
of  the  operation  of  the  statute,  has  been  long  and  much  contro- 
verted in  the  courts.  Different  judges  took  different  views  of  the 
question,  and  various  devices  were  resorted  to  to  evade  the  sta- 
tute. One  refinement  was  added  to  another,  until  the  provisions 
of  a  wholesome  law  became  almost  a  nullity.  Of  late  years  these 


OCTOBER  TERM,  1831.  411 

^xecutors  of  Conovers  v.  Conover  et  al. 

refinements  have  been  approached  for  examination,  and  the  glare 
of  great  names  having  passed  away,  it  has  been  found,  upon  a 
closer  inspection,  that  they  are  destitute  of  sound  sense  and  prac- 
tical utility  to  support  them.  The  late  decisions  have  corrected 
the  errors  that  were  afloat,  and  given  the  true  construction  of  the 
statute,  and  in  a  way  calculated  to  settle  it.  It  would  answer 
no  useful  purpose  to  go  over  the  cases.  In  1828  the  question 
came  up  before  the  supreme  court  of  the  United  States,  in  the 
case  of  Bell  v.  Morrison,  from  the  district  of  Kentucky :  1  Pe- 
ters R.  351.  The  opinion  of  the  court  was  delivered  by  justice 
Story.  After  reviewing  all  the  principal  cases,  he  lays  down  the 
following  rule  : — "  If  there  be  no  express  promise,  but  a  promise 
is  to  be  raised  by  implication  of  law  from  the  acknowledgment 
of  the  party,  such  an  acknowledgment  ought  to  contain  an  un- 
qualified and  direct  admission  of  a  previous  subsisting  debt,  which 
the  party  is  liable  and  willing  to  pay.  If  there  be  accompanying 
circumstances,  which  repel  the  presumption  of  a  promise  or  in- 
tention to  pay ;  if  the  expressions  be  equivocal,  vague  and  inde- 
terminate, leading  to  no  certain  conclusion,  but  at  best  to  proba- 
ble inferences,  which  may  affect  different  minds  in  different  ways  ; 
we  think  they  ought  not  to  go  to  the  jury  as  evidence  of  a  new 
promise  to  revive  the  cause  of  action.  Any  other  course  would 
open  all  the  mischiefs  against  which  the  statute  was  intended  to 
guard  innocent  persons,  and  expose  them  to  the  danger  of  being 
entrapped  in  careless  conversations,  and  betrayed  by  perjuries." — 
This  is  a  safe  and  salutary  rule,  applicable  as  well  to  this  court 
as  the  courts  of  law.  Where  the  jurisdiction  of  the  two  courts 
is  concurrent,  the  rule  should  be  the  same.  There  is  no  possible 
reason  why  the  rights  of  parties  in  this  respect  should  be  changed 
by  the  change  of  Jorum.  My  opinion  therefore  is,  that  all  such 
items  of  charge  for  rent  as  were  of  more  than  six  years'  standing 
at  the  time  of  the  commencement  of  the  suit  in  the  common  pleas 
for  rent,  must  be  considered  as  barred  by  the  statute. 

Against  the  sums  properly  payable  by  the  defendant,  he  prays 
an  allowance  of  one  fourth  part  of  the  residue  of  the  personal 
estate.  To  this  he  is  undoubtedly  entitled.  And  in  taking  the 
accounts,  the  balance  in  the  hands  of  the  executors,  as  it  appears 
by  their  own  accounts,  is  to  be  taken  as  the  true  balance.  I  do 


412  CASES  IN  CHANCERY. 

Executors  of  Conovers  v.  Conover  et  al. 

not  find  any  thing  in  the  evidence,  or  in  the  accounts  themselves, 
which  will  authorize  this  court  to  disturb  the  settlement,  as  made 
in  the  orphan's  court ;  even  if  that  could  be  done  in  this  inciden- 
tal way.  I  have  discovered  no  evidence  of  fraud  or  mistake.  That 
the  account  of  the  executors  may  be  of  doubtful  character,  and 
that  Richard  was  sick  and  unable  to  attend  when  the  settlement 
took  place,  and  therefore  had  no  opportunity  of  examining  the 
account,  furnishes  no  sufficient  ground  for  this  court  to  interfere. 
It  must  be  taken  for  granted  that  the  proper  accounting  officer  did 
his  duty,  and  was  careful  to  see  that  all  the  items  were  properly 
vouched  or  proved.  The  balance  in  the  hands  of  the  executor  of 
Robert  Conover,  if  not  embraced  in  the  general  account,  is  to  be 
added  to  the  general  balance  in  the  hands  of  the  surviving  execu- 
tors of  Theodorus  and  William. 

Let  it  be  referred  to  a  mnster  to  take  an  account,  1.  Of  the 
amount  of  the  charge  on  the  land,  with  interest ;  2.  Of  the  amount 
of  the  rent  due,  on  the  principles  above  laid  down ;  3.  Of  the 
amount  of  the  residuum  due  the  defendant,  Richard  Conover;  and, 
4.  Of  the  amount  of  the  judgment  due  Job  Throckmorton,  one  of 
the  defendants. 

In  case  the  property  has  to  be  sold,  the  direction  of  the  court,  is 
that  the  residuary  share  due  to  Richard  shall  be  deducted  from 
the  sum  charged  on  the  land,  and  that  the  land  be  held  chargeable 
in  the  first  place  for  the  balance,  after  making  such  deduction  ;  and 
that  the  part  of  the  land  which  remains  unsold  be  first  liable,  and 
the  other  part  be  resorted  to  only  to  supply  a  deficiency :  that  the 
amount  of  the  Throckmorton  judgment  be  next  satisfied  ;  and  then 
the  amount  that  may  be  due  the  complainants  for  rent,  as  ascer- 
tained by  the  master. 

No  formal  application-  was  made  for  the  consolidation  of  these 
two  suits,  though  the  matter  was  considerably  debated  at  the 
hearing ;  and  perhaps  it  might  not  be  proper  to  make  any 
order  to  that  effect  at  this  time.  But  I  would  recommend  it  to 
both  parties,  as  a  measure  that  will  save  much  cost  and  delay. 
There  appears  to  me  to  be  great  difficulty  in  bringing  them  to  a 
eeparate  conclusion.  The  accounts  of  the  executors,  embracing 
both  estates,  will  have  to  be  unravelled,  and  separate  statements 
made.  The  two  inventories  were  not  of  the  same  amount;  the 


OCTOBER  TERM,  1831.  413 


Shannon  v.  Marselis  et  al. 


debts  and  expenses  were  not  equal  in  both  cases,  and  of  course  the 
residuum  in  each  case  will  be  different.  Under  the  impression,  and 
I  think  a  correct  one,  that  the  parties  interested  were  the  same 
under  both  wills  ;  that  their  rights  were  the  same,  and  that  no  pos- 
sible change  of  circumstances  could  vary  them  ;  all  the  proceedings 
have  been,  as  it  were,  joint  proceedings,  up  to  the  filing  of  the  bills 
in  *uese  cases.  The  complainants  were  not  only  at  liberty  to  pro- 
ceed as  they  did  by  separate  suits,  but  prudent  and  correct  in  doing 
so;  yet  it  appears  to  me  that  great  benefit  will  result  by  consolida- 
ting them  at  this  time,  so  that  one  investigation  and  report  of  the 
master,  and  one  decree,  may  settle  both. 

CITED  in  Morse  T.  Oliver,  1  McCar.  262 ;  Way  v.  Bragaw,  1  C.  E.  Or.  217  ; 
Burnham  v.  Dolling,  Id.  312. 


JOSEPH  SHANNON  v.  JOHN  MARSELIS  ET  AL. 

After  a  mortgage  is  given,  the  ultimate  payment  thereof  cannot  be  defeated  by 
any  conveyance  of  the  mortgaged  premises  that  may  be  made  by  the  mort- 
gagor. 

But  where  new  rights  or  interests  have  originated  since  the  execution  of  the 
mortgage,  although  the  mortgagee  is  no  party  to  them,  and  they  may  delay 
him  in  the  prosecution  of  his  remedy ;  yet  the  court  will  protect  them,  and 
direct  the  mortgage  to  be  paid  out  of  such  parts  of  the  property  as  may  be 
most  equitable  to  all  parties  concerned. 

Where  a  mortgagor,  after  giving  a  mortgage,  sells  part  of  the  mortgaged  premises 
to  a  third  person  for  a  valuable  consideration  ;  justice  demands  that  the 
residue  of  the  premises  in  the  bands  of  the  mortgagor  should  satisfy  the 
mortgage  debt;  and  the  purchaser  acquires  a  right,  even  against  the  mort- 
gagee, to  compel  him  to  have  recourse  to  such  residue  for  the  satisfaction  of 
his  debt. 

If  the  mortgagor  sells  a  second  parcel,  this  second  purchaser  acquires  rights  as 
against  the  mortgagor  and  mortgagee  ;  rights  also  arise  as  between  the  first 
and  second  purchasers,  as  to  their  liability  to  the  mortgage  ;  all  which  the 
court  will  notice  and  protect.  If  the  property  remaining  unsold  in  the  hands 
of  the  mortgagor  is  sufficient  to  pay  the  debt,  both  purchasers  will  be  pro- 
tected ;  if  insufficient,  the  last  purchaser  contributes  first,  and  if  there  still  be 
a  deficiency  the  first  purchaser  may  be  called  on :  thus  the  last  purchaser  ia 
first  liable. 

It  is  the  policy  and  duty  of  the  court  to  settle  all  claims  between  the  parties, 
in  one  suit,  if  possible ;  and  upon  a  question  arising  between  two  co-defen- 


414  CASES  IN  CHANCERY. 

Shannon  v.  Marselis  et  al. 

dants,  where  the  matter  is  distinctly  before  the  court,  upon  the  pleadings  and 
proof  between  the  complainant  and  defendants  in  the  case,  the  court  will  de- 
cide the  rights  of  the  defendants  as  between  themselves. 

The  assignee  of  a  bond  and  mortgage  holds  them  subject  to  the  same  equity  that 
existed  against  them  in  the  hands  of  the  mortgagee. 

Where  a  vendor  conveys  land  by  deed  with  covenant  of  warranty,  which  is  subject 
to  a  mortgage  ;  if  the  amount  of  the  mortgage  is  raised  out  of  the  premises 
conveyed,  and  paid  to  satisfy  the  mortgage,  the  vendee  can  immediately  re- 
.  cover  it  back,  by  action  against  the  vendor,  on  his  covenant. 

So  if  the  vendor  was  prosecuting  the  vendee,  on  his  bond  for  purchase-money, 
this  court  would  enjoin  him,  and  compel  him  to  appropriate  the  money  so 
as  to  discharge  the  incumbrance  against  which  he  had  covenanted. 

Where  a  vendor  conveys  land  which  is  subject  to  a  prior  mortgage,  by  deed,  with 
covenant  of  warranty  ;  and  the  vendee  gives  a  mortgage  to  the  vendor  for 
purchase-money,  which  the  vendor  assigns  to  a  third  person,  and  a  bill  is 
filed  upon  the  prior  mortgage,  against  the  vendor,  vendee  and  assignee  of  the 
second  mortgage  ;  if  any  part  of  the  premises  so  conveyed  is  taken  to  satisfy 
the  first  mortgage,  the  vendee  has  a  right  to  have  so  much  deducted  out  of 
his  purchase-money,  or  the  mortgage  given  by  him  for  purchase-money,  in 
the  hands  of  the  assignee. 

Where  there  is  a  mere  allegation  of  an  outstanding  title  or  incumbrance,  this 
court  will  not  interfere,  but  will  leave  the  party  to  his  remedy  on  the  cove- 
nant ;  but  where  there  is  an  eviction,  or  even  an  ejectment  brought,  it  will 
interfere. 

Thus  where  A.  and  B.  were  joint  owners  of  two  lots,  a  small  lot  and  a  larger  lot, 
and  in  1821  gave  a  mortgage  on  both  lots  to  M.,  to  secure  three%hund»ed  and 
sixty-£ve  dollars :  in  1823  B.  conveyed  his  half  of  both  lots  to  G. ;  in  the 
same  year  A.  conveys  his  half  of  the  large  lot  to  G.,  and  G.  conveys  his  half 
of  the  small  lot  to  A.,  whereby  A.  became  sole  owner  of  the  small  lot,  and  G. 
of  the  large  lot ;  G.  having  thus  become  the  purchaser  of  the  large  lot,  by 
conveyance  both  from  A.  and  B.,  the  original  owners  and  mortgagors,  had  a 
right  to  throw  the  payment  of  the  mortgage  to  M.  on  the  small  lot ;  and  that 
lot  must  pay  it  if  sufficient,  if  not  the  large  lot  must  be  resorted  to  to  make 
up  the  deficiency. 

After  this  G.  sold  ninety  feet  of  the  large  lot  to  R.,  and  fifty  feet  to  P. ;  and  in 
1825  sold  the  residue  to  C.  Upon  this  the  same  right  to  protection  vests  in 
these  purchasers.  In  the  event  of  the  small  lot  being  insufficient  to  pay  the 
first  mortgage,  those  parts  of  the  large  lot  sold  to  R.  and  P.  will  be  protected 
from  sale  until  the  residue  sold  to  C.  is  disposed  of:  that  being  the  last  sold 
is  first  liable. 

The  residue  of  the  large  lot  was  sold  and  conveyed  by  G.  to  C,  with  covenant  of 
warranty,  and  C.  on  the  same  day  mortgaged  it  to  G.  for  five  hundred  and 
fifty  dollars.  This  mortgage  was  assigned  by  G.  to  E.,  and  on  the  death  of 
E.  passed  to  his  executors.  If  the  small  lot  prove  insufficient  to  satisfy 
the  first  mortgage,  and  any  part  is  to  be  raised  out  of  the  residue  of 
the  large  lot,  C.  the  purchaser,  by  virtue  of  his  covenant,  is  entitled  to  have 


OCTOBER  TERM,  1831.  415 


Shannon  v.  Marselis  et  al. 


that  amount  deducted  from  his  mortgage,  given  to  G.  for  purchase  money, 
in  the  hands  of  his  assignee. 

In  1827  A.  again  mortgaged  the  small  lot  to  V.  for  one  hundred  and  sixty  dol- 
lars. V.  assigned  this  mortgage  to  S.  the  complainant,  who  in  1829*also 
procured  an  assignment  of  the  first  mortgage  given  to  M.  in  1821  on  both 
lots,  and  thereupon  filed  his  bill  to  foreclose ;  all  the  mortgages  being  yet 
outstanding.  This  third  mortgage  is  a  lien  on  the  small  lot  only,  and  can 
only  come  in  for  the  surplus,  in  case  the  small  lot  should  produce  more  than 
sufficient  to  satisfy  the  first  mortgage. 

This  right  of  the  purchasers  to  protection  is  not  personal,  but  attaches  to  the  pur- 
chaser of  the  property,  whoever  it  maybe;  it  is  connected  with  the  land 
itself,  and  passes  with  it. 

John  Marselis  and  Harraan  Marselis,  being  seized  of  two  lots 
of  land  in  the  township  of  Aquackanonck,  and  county  of  Essex, 
one  containing  six  acres  and  forty  hundredths  of  an  acre,  and  the 
other  thirty-two  hundredths  of  an  acre,  mortgaged  them  both  to 
John  Marselis,  on  the  1st  day  of  September,  1821,  for  three 
hundred  and  sixty-five  dollars. 

On  the  13tk  May,  1822,  Harman  Marselis  coaveyed  his 
moiety  or  one  half  part  of  both  lots,  or  the  equity  of  redemption 
therein,  to  Henry  Griffin,  for  two  hundred  and  nine  dollars. 

On  the  1st  August,  1823,  John  Marselis  conveyed  his  moiety 
or  one  half  part  of  the  larger  lot  (six  acres  and  forty  hundredths 
of  an  acre)  also  to  Henry  Griffin.  Griffin  thus  became  the 
legal  owner  of  the  whole  of  the  larger  lot,  and  of  one  half  of  the 
smaller  one,  subject  to  the  mortgage  to  Marselis. 

On  the  same  1st  August,  1823,  Griffin  conveyed  all  his  in- 
terest in  the  smaller  lot  (thirty-two  hundredths  of  an  acre)  to- John 
Marselis,  whereby  he  again  became  the  legal  owner  of  the  smaller 
lot.  While  owning  the  larger  lot  of  six  acres  and  forty  hun- 
dredths of  an  acre,  Griffin  sold  from  it  a  lot  of  ninety  feet  to  Ro- 
bert Morrell,  and  another  lot  of  fifty  feet  to  Paul  Vanderbeck. 

On  the  24^  September,  1825,  Griffin  sold  the  lot  of  six  acres 
and  forty  hundredths  of  an  acre  to  Robert  Carrick,  for  eight 
hundred  dollars  ;  excepting  out  the  two  small  parcels  he  had  be- 
fore sold  to  Morrell  and  Vanderbeck. 

On  the  same  day,  Carrick  gave  a  mortgage  to  Griffin  on  the 
same  lot,  for  five  hundred  and  fifty  dollars.  This  mortgage  was 


416  CASES  IN  CHANCERY. 

Shannon  v.  Marselis  et  al. 

afterwards  assigned  by  Griffin  to  Morrell,  and  by  him  to  William 
Ellison,  whose  executors  now  hold  it. 

On  the  second  day  of  August,  1827,  John  Marselis  gave  a 
mortgage  to  Adrian  Vanhovten,  on  the  smaller  lot,  for  one  hun- 
dred and  sixty  dollars,  and  Vanhouten  afterwards  assigned  it  to 
Shannon,  the  complainant. 

And  on  the  2d  March,  1829,  Shannon  procured  from  Marse- 
lis an  assignment  of  the  original  bond  and  mortgage  given  by 
John  and  Harman  Marselis  on  the  whole  property  in  1821. 

All  the  mortgages  are  outstanding.  This  bill  is  filed  by  Shan- 
non, the  assignee  of  the  first  and  third  mortgages,  for  a  fore- 
closure and  sale  of  the  mortgaged  premises.  The  executors  of 
Ellison,  who  hold  the  second  mortgage,  are  made  parties,  as  well 
as  all  others  interested. 

Morrell  and  Carrick,  the  purchasers,  and  the  executors  of  El- 
lison, answered.  The  cause  was  heard  on  the  bill,  answers  and 
proofs. 

B.  W.  Vandervoort,  for  the  complainant.  This  case  pre- 
sents important  questions  as  to  the  rights  of  these  several  mort- 
gagees and  purchasers.  We  insist  that  the  whole  premises,  the 
small  lot  and  the  large  lot,  are  liable  to  satisfy  the  first  mortgage, 
and  ought  to  contribute  in  a  ratable  proportion,  according  to  the 
value  of  the  property.  Where  lands  are  mortgaged  for  the  pay- 
ment of  a  debt,  the  burden  should  rest  on  every  part:  3  P.  Wins. 
98,  99  ;  1  John.  C.  R.  55,  409,  425 ;  2  Atk.  R.  383 ;  1  Bro. 
C.  C.  92;  2  Bro.  C.  C.  219;  3  Wils.  R.  275;  2  Blao.  C.  160, 
(n.  4);  6  Ves.  jr.  328.  John  Marselis  and  Harman  Marselis 
were  tenants  in  common  of  both  lots ;  each  had  a  right  to  con- 
vey his  own  moiety.  They  were  both  liable,  and  by  the  mort- 
gage each  of  their  shares  was  charged  with  the  mortgage  debt. 
We  insist  that  the  purchasers  under  them  stand  in  the  same  sit- 
uation, and  that  the  subsequent  purchasers  are  equally  bound. 

The  defendants  set  up  the  principle,  that  where  there  is  a  con- 
veyance of  part  of  the  mortgaged  premises,  the  residue  must  first 
be  exhausted  to  satisfy  the  mortgage.  This  would  operate  inju- 
riously on  John  Marselis.  He  owns  the  small  lot:  is  that  to  be 
charged  with  the  whole  amount  of  the  first  mortgage,  when  the 


OCTOBER  TERM,  1831.  417 

Shannon  v.  Marselis  et  al. 

large  lot  was  equally  bound?  If  John  Marselis,  individually,  had 
owned  .the  whole  property  at  the  time  the  first  mortgage  was  given, 
the  principle  contended  for  might  apply ;  but  as  he  was  the  owner 
of  a  moiety  only,  and  liable  for  a  moiety  of  the  mortgage  debt,  we 
insist  that  it  does  not. 

If  the  first  mortgage  is  to  be  charged  wholly  on  the  smaH  lot, 
and  the  large  lot  is  to  be  exempt,  the  whole  proceeds  of  the  small 
lot  may  be  exhausted  to  satisfy  the  charge ;  and  the  third  mort- 
gage, given  on  that  lot  alone,  and  now  held  by  the  complainant, 
defeated.  Carrick  sets  up,  that  he  had  no  actual  notice,  but  only 
constructive  notice,  of  the  first  mortgage.  That  is  sufficient.  We 
contend  that  the  true  course  would  be,  that  the  whole  of  the  mort- 
gaged premises  should  contribute  proportionably  to  satisfy  the  first 
mortgage,  and  the  surplus  proceeds  of  the  small  lot  be  applied  to 
satisfy  the  third  mortgage.  This  would  be  equal  justice  to  all. 

E.  Vanarsdale,  jun.,  for  Robert  Carrick.  The  complainant, 
holding  the  first  and  third  mortgages,  seeks  to  make  both  lots 
contribute  to  pay  off  the  first  mortgage,  and  then  apply  the  sur- 
plus proceeds  of  the  small 'lot  to  the  payment  of  the  third  mort- 
gage ;  by  which  he  might  get  his  money  on  the  first  and  third 
mortgages,  and  exclude  the  second.  This  would  do  injustice  to 
purchasers,  and  to  the  holders  of  the  second  mortgage.  The  cases 
cited  for  the  complainant,  however  correct  in  principle,  do  not 
apply  here.  We  insist  that  the  complainant  must  first  resort  to 
the  small  lot,  which  the  second  mortgage  does  not  cover,  to  satisfy 
the  first  mortgage.  Ou  the  principle  of  two  liens,  or  a  lien  on  two 
properties,  Griffin  or  his  assignees  can  only  take  one  lot,  the  large 
lot,  having  a  lien  on  that  only.  The  complainant  must  resort  to 
the  small  lot  to  satisfy  the  first  mortgage.  Carrick  is  a  subsequent 
bona  fide  purchaser,  and  entitled  to  protection  :  19  John.  R.  486, 
492;  1  John.  C.  R.  412;  4  John.  C.  R.  17  ;  7  John.  C.  R.  174, 
184;  1  Hopk.  R.  460. 

If  the  small  lot  be  sold  and  bring  enough  to  satisfy  the  first 
mortgage,  it  is  well ;  if  not,  then  the  question  arises  between 
Carrick  as  purchaser,  and  the  executors  of  Ellison  as  assignees 
of  the  mortgage  on  the  large  lot.  As  to  this,  the  matter  is  fully 
before  the  court,  and  they  will  do  justice  to  all  parties,  even  be- 

2D 


118  CASES  IN  CHANCERY. 


Shannon  v.  Marselis  et  al. 


tween  co-defendants :  2  Sch.  and  Lef.  709,  718  ;  2  Ball  and  Bea. 
271. 

Griffin  sold  to  Carrick,  and  gave  a  warranty  deed  for  the  large 
lot,  when  he  took  the  second  mortgage.  The  covenant  of  war- 
ranty must  be  fulfilled  before  the  mortgage  is  paid  :  1  John.  C.  R. 
301 ;  3  P.  Wms.  306.  It  is  true,  the  mortgage  has  got  into  the 
hands  of  the  executors  of  Ellison  ;  but  they  are  assignees  of  Griffin, 
and  stand  in  no  better  situation.  The  assignee  of  a  bond  and 

o 

mortgage,  takes  it  subject  to  all  the  equity  of  the  mortgagor :  1 
John.  C.  R.  479,  499.  Carrick  admits  he  gave  the  second  bond 
and  mortgage,  and  that  all  the  money  is  due  upon  it ;  but  insists, 
that  if  his  lot  has  to  pay  any  part  of  the  first  mortgage,  so  much 
should  be  deducted  out  of  his  mortgage  in  the  hands  of  the  execu- 
tors of  Ellison. 

P.  Dickerson,  for  Morrell  and  the  executors  of  Ellison.  The 
interest  of  my  clients  and  Carrick  are  identical  as  to  the  first 
point;  that  is,  that  the  small  lot  should  be  sold  first,  to  satisfy 
the  first  mortgage.  As  between  Ellison  and  the  complainant, 
the  case  is  this :  two  men  mortgage,  and  then  sell  off  a  part  of 
the  mortgaged  premises.  We  say  that  the  part  retained  ought 
to  be  first  sold  and  applied  to  satisfy  the  mortgage.  The  fact 
that  the  mortgagors  held  as  tenants  in  common,  cannot  alter  the 
principle. 

Morrell's  case  is  peculiar :  he  first  purchased  of  Griffin  a  part 
of  the  large  lot;  another  part  was  sold  to  Vanderbeck,  and  the 
remainder  to  Carrick.  If  the  small  lot  is  insufficient  to  pay  the 
first  mortgage,  we  insist  that  the  residue  of  the  large  lot  which 
was  last  sold,  to  Carrick,  should  be  first  applied  to  satisfy  the  de- 
ficiency. 

The  counsel  of  Carrick  call  upon  the  court  to  settle,  inciden- 
tally, the  matter  between  Carrick  and  the  executors  of  Ellison. 
How  can  this  be  done?  It  is  not  in  issue.  The  case  in  Scho.  and 
Lef.  shows  that  the  matter  must  come  up  on  the  pleadings  be- 
tween the  complainant  and  defendants,  not  between  two  defendants 
alone.  We  apprehend  this  matter  cannot  be  settled  in  the  present 
case. 


OCTOBER  TERM,  1831.  419 


Shannon  v.  Marselis  et  al. 


T.  '  Frelinghuysen,  for  the  complainant.  Here  are  three 
mortgages;  the  first  covers  both  lots,  the  second  covers  the  large 
lot,  and  the  third  the  small  lot.  According  to  the  defendants' 
doctrine,  the  third  mortgage  must  be  cut  off.  The  two  Marse- 
lises,  who  gave  the  first  mortgage,  were  tenants  in  common ; 
their  title  was  several ;  and  although  they  joined,  it  was  the  same 
as  if  they  had  given  several  mortgages  to  secure  the  same  debt. 
Harman  Marselis  sells  out  his  moiety  of  both  lots  to  Griffin. 
Griffin  then  stood  in  his  shoes.  John  Marselis  and  Griffin  be- 
came tenants  ^n  common  ;  each  owned  half  of  the  mortgaged 
premises,  and  each  half  was  equally  pledged  for  the  payment  of 
the  debt.  Harman  Marselis,  by  his  sale  to  Griffin,  could  not 
throw  the  whole  burden  of  the  mortgage  on  the  moiety  of  the 
property  belonging  to  John.  It  is  not  the  case  of  a  mortgagor 
selling  a  part  of  the  mortgaged  premises  and  retaining  the  resi- 
due ;  but  of  two  joint  mortgagors  of  their  several  property,  and 
one  of  them  selling  out  his  whole  share  of  the  mortgaged  prem- 
ises to  a  third  person  :  in  such  case  the  purchaser  must  take  it 
subject  to  the  mortgage.  It  is  said  that  Griffin  afterwards  made 
conveyances,  but  he  is  not  the  mortgagor ;  the  doctrine  does  not 
apply  to  the  vendee  of  the  mortgagor :  it  is  a  personal  equity,  con- 
fined to  the  mortgagor  only. 

It  is  insisted  that  there  are  two  funds:  that  the  junior  cre- 
ditor has  a  lien  on  one  only,  and  thereforg  the  court  are  to  regu- 
late the  distribution.  The  general  principle  in  such  cases  is  a 
salutary  one,  but  third  persons  are  not  to  be  injured.  The  con- 
test must  be  between  two  creditors  :  here  are  three  creditors,  and 
the  adjustment  must  be  on  different  grounds.  The  answer  does 
not  make  out  a  case  in  which  the  court  can  apply  the  rule.  If  a 
third  creditor  is  to  be  affected,  we  insist,  the  rule  cannot,  and 
ought  not  to  be  applied.  If  we  are  wrong  here,  there  is  another 
principle  that  ought  to  relieve  us.  Griffin  became  possessed  of 
both  moieties  of  the  large  lot;  the  tenancy  in  common,  the  in- 
terests and  responsibilities  became  united  in  him.  The  half  of 
that  lot,  at  least,  was  liable  in  his  hands ;  and  he  could  not 
exonerate  it  by  conveying  to  John  Marselis  the  half  of  the  small 
lot  It  piesents  a  new  case.  Again,  we  have  regard  to  the  registry 


420  CASES  IN  CHANCERY. 

Shannon  v.  Marselis  et  al. 

of  mortgages ;  the  property  ought  to  contribute  ratably,  and  the 
only  safe  rule  is  the  equity  springing  out  of  the  records. 

THE  CHANCELLOR.  There  can  be  no  difficulty  or  question 
as  to  the  right  of  recovery  on  the  part  of  the  complainant,  so  far 
as  the  first  mortgage  is  concerned.  That  mortgage  covers  tho 
•whole  property,  which  is  abundantly  able  to  satisfy  it.  The 
question  is,  in  what  way  shall  it  be  satisfied,  consistently  with 
the  equitable  rights  of  third  persons  having  subsequent  vested 
interests. 

Carrick,  one  of  the  defendants,  owning  the  six  acres  and  for- 
ty hundredths  of  an  acre  lot,  contends  that  the  first  mortgage 
should  be  raised  or  satisfied  out  of  the  smaller  lot,  to  the  exclusion 
of  the  larger;  and  that  the  larger  lot  should  only  be  resorted  to 
in  case  of  a  deficiency.  He  sets  out  in  his  answer,  that  when  he 
purchased  of  Griffin,  and  gave  the  mortgage  to  him  which  is  now 
in  the  hands  of  Ellison's  executors,  he  was  totally  ignorant  of  the 
incumbrance  that  was  upon  it,  in  tlje  hands  of  Marselis  ;  that  he 
took  a  deed  with  covenants  of  warranty ;  and  that,  if  any  of  the 
proceeds  of  the  six  acres  and  forty  hundredths  of  an  acre  lot  should 
be  wanting  to  satisfy  the  first  mortgage,  that  it  must  be  deducted 
from  the  amount  of  the  mortgage  given  by  him  to  Griffin,  and 
which  is  now  in  the  hands  of  Ellison's  executors,  as  assignees  of 
Griffin  ;  and  upon  those  principles  proffers  his  readiness  to  pay 
what  is  equitably  due  on  the  first  mortgage,  after  the  smaller  lot  is 
first  appropriated  to  its  discharge. 

Robert  Morrell,  another  of  the  defendants,  also  contends,  that 
the  small  lot  should  first  be  sold  to  pay  the  original  mortgage,  and 
that  the  larger  lot  should  be  resorted  to  only  in  case  of  a  deficien- 
cy; and  in  such  case,  that  the  part  of  the  lot  which  he  purchased 
of  Griffin  should  not  be  sold,  until  the  part  which  still  remains  in 
Carrick's  possession  is  disposed  of. 

The  executors  of  Ellison  agree  with  Carrick  and  Morrell,  that 
the  smaller  lot  must  first  be  sold  and  appropriated,  and  in  case  of 
a  deficiency  that  the  six  acres  and  forty  hundredths  of  an  acre 
lot  be  sold  to  pay  the  balance  ;  but  they  deny  the  right  of  abate- 
ment set  up  by  Carrick,  and  insist  that  the  residue  of  the  pro- 
ceeds of  the  six  acres  and  forty  hundredths  of  an  acre  lot  ought 


OCTOBER  TERM,  1831.  421 

Shannon  v.  Marselis  et  al. 

to  be  appropriated  to  the  discharge  of  their  mortgage,  without  any 
deduction. 

On  the  other  hand,  the  complainant  insists  that  the  doctrine  of 
contribution  set  up  by  the  defendants  is  altogether  too  refined,  and 
cannot  apply  to  this  case;  that  all  the  mortgages  were  recorded 
regularly,  and  if  there  is  any  loss  it  should  be  borne  ratably. 

These  various  conflicting  interests  and  claims,  it  is  the  province 
and  pleasure  of  this  court  to  settle  among  all  the  parties,  on  just 
and  equitable  principles. 

As  to  the  first  mortgage,  it  appears  to  me  there  can  be  no  diffi- 
culty. Both  lots  are  bound  for  the  payment  to  the  mortgagee  or' 
his  assigns,  and  the  ultimate  payment  cannot  be  defeated  by  any 
sale  or  conveyance  that  may  be  made  of  them  by  the  mortgagors. 
Nevertheless,  where  new  rights  or  interests  have  originated  since 
the  execution  of  the  mortgage,  although  the  mortgagee  is  no  party 
to  them,  and  they  may  tend  to  delay  him  in  the  prosecution  of  his 
remedy,  yet  the  court  will  protect  them ;  and  will  direct  the  mort- 
gagee to  be  paid  out  of  such  parts  of  the  property,  and  in  such  way, 
as  may  be  most  equitable  to  all  parties  concerned. 

Where  a  man  gives  a  mortgage  upon  his  property,  and  after 
having  done  so  sells  a  part  of  it  to  a  third  person  for  a  valuable 
consideration,  justice  demands  that  the  residue  of  the  mortgaged 
premises,  in  the  hands  of  the  mortgagor,  should  satisfy  the 
mortgage  debt ;  and  the  purchaser  acquires  a  right  even  against 
the  mortgagee,  so  far  as  to  compel  him  to  have  recourse  to  such 
residue  for  the  satisfaction  of  his  debt,  if  it  shall  be  sufficient  for 
that  purpose.  If  the  mortgagor  sell  a  second  parcel,  the  second 
purchaser  immediately  acquires  rights  as  against  the  mortgagor, 
and  also  as  against  the  mortgagee,  and  rights  also  accrue  imme- 
diately between  the  first  and  second  purchasers,  as  to  their  liability 
to  the  mortgagee ;  all  of  which  the  court  will  notice  and  protect. 
If  the  property  remaining  unsold  in  the  hands  of  the  mortgagor  is 
sufficient  to  pay  the  debt,  both  purchasers  will  be  protected.  If 
insufficient,  the  last  purchaser  contributes  first,  and  if  there  be  still 
a  deficiency,  then  the  first  purchaser  may  be  called  on  and  is  liable. 
Thus  the  last  purchaser  is  always  first  liable.  This  is  the 
settled  rule  of  this  court,  and  is  founded  on  plain  principles  of 
justice. 


422  CASES  IN  CHANCERY. 

Shannon  v.  Marselis  et  al. 

Apply  the  rule  to  this  case,  and  it  appears  that  the  first  mortgage 
must  be  paid  out  of  the  smaller  lot,  if  it  will  pay  it,  and  if  not  the 
larger  one  must  pay  the  deficiency. 

Harman  Marselis  and  John  Marselis  were  the  owners  of  the 
mortgaged  premises,  and  made  the  mortgage  to  Marselis,  which 
is  known  by  the  name  of  the  first  mortgage.  They  were  ten- 
ants in  common.  By  separate  conveyances,  and  at  different 
times,  they  sold  their  interest  in  the  larger  lot,  to  Henry  Griffin, 
so  that  on  the  1st  of  August,  1823,  he  was  the  purchaser  of  that 
lot  for  a  valuable  consideration,  having  title  from  both.  He  then 
had  a  right  to  protection,  and  to  throw  the  mortgage  debt  upon 
the  residue  of  the  mortgaged  premises.  Having  this  right,  he 
sells  a  small  part  of  the  six  acres  and  forty  hundredths  of  an  acre 
lot  to  Morrell,  and  a  small  part  to  Yanderbeck,  and  the  residue  to 
Carrick.  The  same  right  to  protection  vests  in  these  purchasers; 
for  it  is  not  personal,  as  was  supposed  at  the  bar,  but  attaches  to 
the  purchaser  of  the  property,  whoever  he  may  be,  and  is  connected 
with  the  property  itself. 

It  was  forcibly  urged,  that  however  this  rule  might  apply  to 
ordinary  cases,  it  could  have  no  application  here;  for  that  the 
mortgagors  were  tenants  in  common  ;  that  they  had  a  right  to 
sell  at  different  times,  and  by  separate  conveyances,  whi,ch  was 
the  case  here;  and  that  it  would  be  unjust,  where  two  tenants  in 
common  made  a  common  mortgage,  that  one  might  sell  out  all 
his  interest,  and  thereby  throw  the  whole  burden  of  the  incum- 
brance  upon  his  co-tenant.  There  is  much  justice  in  the  argu- 
ment, but  in  the  view  I  take  of  this  case,  I  am  not  called  upon 
to  decide  how  far  such  a  state  of  things  might  call  for  a  modifi- 
cation of  the  rule.  I  do  not  say  that  when,  in  1822,  Harman 
Marselis  sold  his  moiety  of  the  six  acres  and  forty  hundredths  of 
an  acre  lot  to  Griffin,  he  thereby  threw  the  mortgage  on  that 
part  which  still  belonged  to  the  other  mortgagor,  his  co-tenant; 
but  when,  in  1823,  John  Marselis  conveyed,  in  like  manner,  his 
moiety  to  Griffin,  then  he  had  a  complete  title  from  both.  It  was 
the  same  as  though  there  had  been  but  one  mortgagor,  and  he 
had  made  the  conveyance,  or  as  though  both  the  tenants  in  com- 
mon had  joined  in  a  common  deed ;  and  then  it  was  as  between 
the  purchaser  and  the  mortgagors,  there  accrued  an  equity  in  favor 


OCTOBER  TERM,  1831.  423 

Shannon  v.  Marselis  et  al. 

of  the  purchaser,  that  the  mortgage  money  should  be  raised  out  of 
the  residue  of  the  mortgaged  premises  unsold. 

There  is  some  confusion  or  uncertainty  as  to  the  mode  in  which 
the  title  to  the  smaller  lot  has  been  transmitted.  The  bill  states, 
that  Harman  Marselis  conveyed  to  Griffin  his  interest  in  both  lots, 
and  it  states  also  that  John  Marselis  made  to  him  a  similar  con- 
veyance of  all  his  interest.  But  both  answers  deny  that  John 
Marselis  conveyed  to  Griffin  the  half  of  the  small  lot,  and  as  there 
is  no  proof  of  it  I  take  it  for  granted  that  the  fact  is  not  so.  Then 
Griffin  never  had  such  a  title  for  that  smaller  lot  as  would  place 
it  on  the  same  footing  with  the  other  lot,  and  compel  it  to  contri- 
bute ratably  to  the  payment  of  the  mortgage.  He  had  a  title  for 
an  undivided  moiety  from  one  of  the  tenants  in  common,  the  origi- 
nal mortgagors ;  but  as  before  hinted,  it  is  doubtful  whether  that 
could  operate  to  throw  the  whole  burden  on  the  other  moiety 
in  the  hands  of  the  co-tenant,  and  if  it  did  not,  the  exemption 
attached  only  to  the  larger  lot.  Independently  of  that,  it  will  be 
seen,  that  before  any  rights  accrued  to  third  persons  in  the  smaller 
lot,  it  came  into  the  possession  of  John  Marselis,  one  of  the  original 
mortgagors,  in  whose  favor  no  equity  could  attach  as  against  those 
holding  other  parts  of  the  mortgaged  premises  under  the  mort- 
gagors. Whichever  way,  therefore,  it  is  taken,  it  appears  that  the 
smaller  lot  is  first  liable,  and  that  the  first  mortgage  must  be  satis- 
fied out  of  that,  if  it  will  pay  it,  and  if  it  will  not  then  the  six  acres 
and  forty  hundredths  of  an  acre  lot  must  be  resorted  to  to  make  up 
the  deficiency. 

In  such  event,  the  two  small  parcels  sold  by  Griffin  to  Morrell 
and  Vanderbeck  will  be  exempted  from  sale  till  that  part  which 
Griffin  conveyed  to  Robert  Carrick  is  disposed  of,  that  being  the 
last  sold  by  Griffin,  and  of  course,  upon  the  principle  already 
laid  down,  the  first  liable.  In  this  mode  the  first  mortgage  will 
be  paid. 

If  it  should  be  necessary  to  resort  to  the  larger  lot,  there  is  a 
question  arising  between  Carrick  and  the  executors  of  Ellison. 
They  are  co-defendants.  The  mortgage  held  by  the  executors 
of  Ellison  is  before  the  court,  upon  the  pleadings.  The  execu- 
tors contend,  that  the  proceeds  of  the  sale  of  the  larger  lot,  after 
satisfying  the  first  mortgage,  shall  be  appropriated  to  pay  their 


424  CASES  IN  CHANCERY. 

Shannon  v.  Marselis  et  al. 

mortgage,  given  by  Carrick  to  Griffin,  and  by  Griffin  assigned  to 
Morrell,  and  by  Morrell  to  Ellison  in  his  life-time.  Carrick,  on 
the  other  hand,  insists,  that  as  he  purchased  from  Griffin  with  cov- 
enants of  warranty,  if  any  part  of  the  property  conveyed  to  him  is 
taken  to  satisfy  a  prior  mortgage,  that  so  much  shall  be  deducted 
out  of  the  purchase  money,  or  out  of  ihe  mortgage  given  for  the 
purchase  money,  which  is  the  same  thing. 

This  is  a  matter  simply  between  co-defendants,  and  it  was  stated 
on  the  argument  that  this  was  not  the  proper  time  to  adjust  it; 
that  the  rights  of  these  two  parties,  as  between  themselves,  were 
not  regularly  in  issue  before  the  court  in  this  suit.  I  cannot  con- 
cur in  this  opinion.  It  is  the  policy  and  duty  of  this  court  to  set- 
tle and  adjust  all  claims  between  the  parties  in  one  suit  if  possible. 
In  Chamlcy  v.  Dusaney  and  al.,  2  Sch.  and  Lef.  718,  Ld.  Eldon, 
on  appeal,  said,  it  was  objected  to  the  decree  before  the  court  that 
it  was  between  defendants,  and  that  that  was  contrary  to  the  prac- 
tice of  the  court  of  equity,  because  there  could  be  no  cross-exami- 
nation between  co-defendants :  but  he  held,  that  where  a  case 
was  made  between  the  defendants  by  evidence  arising  from  plead- 
ings and  proofs  between  plaintiffs  and  defendants,  a  court  of  equity 
was  not  only  entitled  to  make  a  decree  between  the  defendants,  but 
bound  to  do  so.  -  The  defendant  being  chargeable,  has  a  right  to 
insist  that  he  shall  not  be  liable  to  be  made  a  defendant  in  another 
trial  for  the  same  matter  that  may  be  then  decided  between  him 
and  his  co-defendant,  and  the  co-defendant  may  insist  that  he  shall 
not  be  obliged  to  institute  another  suit  for  a  matter  that  may  be 
there  adjusted  between  the  defendants.  See  also  Harris  v.  Ingle- 
den,  3  P.  Wms.  99.  Here  the  matter  is  distinctly  before  the  court 
upon  the  pleadings  and  proofs.  The  executors  of  Ellison  claim 
the  whole  amount  of  the  mortgage.  Carrick  insists  that,  in  a  cer- 
tain event,  there  should  be  a  deduction.  He  produces  before  the 
court  the  deed  from  Griffin  to  himself,  with  full  covenants  of  seizin 
and  warranty,  and  against  this  no  counter-evidence  is  brought  for- 
ward. 

The  question  then  arises,  has  Carrick  any  equity  against  the 
executors  of  Ellison,  who  is  the  assignee  of  Griffin  ?  It  must  be 
conceded  that  they  hold  the  bond  and  mortgage  subject  to  the 
same  equity  that  existed  against  it  in  the  hands  of  the  mortgagee; 


OCTOBER  TERM,  1831.  425 


Shannon  v.  Marselis  et  al. 


that  is  all  the  equity  of  the  obligor.  The  principle  appears  to  be 
well  settled:  Coles  v.  Jones  and  at.,  2  Ves.  692,  765;  Hillv. 
Caillovel,  1  Ves.  122;  Hinton  v.  Benson,  1  Plowd.  497 ;  Ma- 
thews  v.  Walwyn,  4  Ves.  118.  In  2  Johns.  Rep.  612,  Kent, 
sitting  in  the  court  of  errors,  said,  speaking  of  the  assignee  of  a 
bond  and  mortgage,  that  he  took  them  subject  to  every  defence 
that  existed  against  them  in  the  hands  of  the  obligee  :  that  the 
obligor  could  not  be  prejudiced  by  the  assignment;  and  that  the 
registry  acts  had  nothing  to  do  in  the  case.  In  the  case  of  Mur- 
ray v.  Lylburn,  2  John.  C.  _R.  441,  the  same  judge,  sitting  in 
chancery,  again  recognizes  and  defends  the  principle,  remarking, 
that  "  the  assignee  can  always  go  to  the  debtor  and  ascertain 
what  claims  he  may  have  against  the  bond  or  other  chose  in 'ac- 
tion which  he  is  about  purchasing  from  the  obligee."  And  the 
master  of  the  rolls,  sir  Jos.  Jekyll,  in  the  case  cited  from  P.  Wms. 
says,  "  that  it  was  incumbent  on  any  one  who  took  an  assign- 
ment of  a  bond,  to  be  informed  by  the  obligor,  concerning  the 
quantum  due  upon  such  bond,  which  if  he  neglected  to  do,  it  was 
his  own  fault,  and  he  should  not  take  advantage  of  his  own  laches." 
See  also  Livingston  v.  Dean  and  at.,  2  John.  C.  JR.  479 ;  Scott  v. 
Shreave,  12  Wheat.  608;  United  States  v.  Sturgis,  and  al.,  1 
Paine,  525. 

The  executors  of  Ellison,  standing  them  in  the  place  of  Grif- 
fin, we  are  to  consider  whether  if  Griffin  was  attempting  to  en- 
force this  mortgage  against  Carrick,  Carrfck  would  be  entitled  to 
any  relief  in  consequence  of  the  outstanding  incumbrance,  and 
the  covenant  in  his  deed.  It  is  very  evident,  that  if  the  amount 
of  the  mortgage  money  is  raised  from  Carrick's  property,  and  paid 
to  satisfy  the  mortgage,  that  Carrick  can  immediately  recover  it 
back  by  action  on  the  covenant.  There  can  be  no  good  reason 
assigned  why  there  should  be  this  circuity  of  action ;  but  a  very 
good  one  why  there  should  not;  which  is,  that  the  money  might 
be  lost  to  Carrick  altogether,  he  having  no  security  but  the  cove- 
nant. If  Griffin  was  prosecuting  at  law  on  the  bond,  this  court 
would  certainly  injoin  him,  and  compel  him  to  appropriate  the 
money  so  as  to  discharge  the  incumbrance  against  which  he  had 
covenanted.  In  Johnson  v.  Gree,  3  John.  C.  JR.  546,  where 
the  vendee  gave  a  bond  and  mortgage  to  secure  the  purchase- 


426  CASES  IN  CHANCERY. 

Shannon  v.  Marselis  et  al. 

money,  and  an  action  of  ejectment  was  afterwards  brought  against 
him  by  a  person  claiming  a  paramount  title,  and  the  vendor 
brought  a  suit  on  the  bond  and  advertised  the  premises  for  sale 
under  a  power  in  the  mortgage;  the  proceedings  on  the  bond  and 
mortgage  were  ordered  to  be  stayed  until  the  action  of  ejectment 
was  determined,  and  the  farther  order  of  the  court.  Where  there 
is  a  mere  allegation  upon  an  outstanding  title  or  incumbrance,  the 
court  will  not  interfere,  but  leave  the  party  to  his  remedy  on  the 
covenant;  but  where  there  is  an  eviction,  or  even  an  ejectment 
brought,  it  will  interpose.  In  this  case  the  first  mortgagee  is  pros- 
ecuting his  claim  ;  the  second  one  is  before  the  court  and  asks  to 
be  paid  what  is  due,  and  also  the  third.  All  parties  are  here,  and 
justice  can  be  done. 

That  Carrick  is  entitled  to  relief  I  can  entertain  no  doubt.  If 
any  part  of  his  property  has  to  be  sold  to  pay  off  the  first  mort- 
gage, he  is  entitled  to  have  the  amount  deducted  from  his  mort- 
gage to  Griffin.  In  Jourvill  v.  Narish,  3  P.  Wms.  306,  it  was 
held,  that  when  a  man  purchases  an  estate  and  pays  part,  and 
gives  bond  for  the  residue,  notice  of  an  equitable  incumbrance  be- 
fore payment,  though  after  the  giving  of  the  bond,  was  sufficient  to 
stop  payment,  and  to  entitle  the  obligor  to  relief  in  equity  against 
the  bond  ;  an'd  this  was  declared  to  be  the  rule,  though  the  pur- 
chaser had  actual  notice  of  the  incumbrance  before  the  purchase. 
The  constructive  notice  furnished  by  the  registry,  cannot  affect  the 
equity  between  the  vendor  and  the  purchaser ;  and  we  have  seen 
that  as  to  it  the  executors  of  Ellison  stand  in  no  better  situation 
than  the  mortgagee  himself. 

It  is  unnecessary  to  say  any  thing  as  to  the  third  mortgage.  It 
is  a  lien  on  the  smaller  lot  only,  and  can  only  be  paid  in  case  the 
proceeds  of  that  lot  amount  to  more  than  sufficient  to  satisfy  the 
first  mortgage. 

Let  an  account  be  taken  of  the  amount  due  on  each  of  the 
mortgages.  Let  the  smaller  lot  be  first  sold  and  the  proceeds  ap- 
plied to  the  first  mortgage;  and  the  surplus,  if  any,  to  the  third 
mortgage.  If  the  first  mortgage  be  not  satisfied  by  the  sale  of 
the  smaller  lot,  let  that  part  of  the  six  acres  and  forty  hundredths 
of  an  acre  lot  in  Carrick's  possession,  be  sold  to  satisfy  the  resi- 
due, and  also  to  pay  the  balance  that  may  be  due  on  the' second 


OCTOBER  TERM,  1831.  427 

Decker  v.  Caskey  et  al. 

mortgage,  after  making  a  deduction  of  so  much  as  may  go  to  satisfy 
the  said  residue  on  the  first  mortgage. 

Carrick  will  be  at  liberty  to  redeem  his  property  on  the  princi- 
ples above  stated. 

CITED  in  Van  Waggoner  v.  McEwen,  1  Gr.  C  h.  413;  Wicko/\.  Davis,  3  Gr.  Ch. 
226 ;  Jacques  v.  Esler,  3  Gr.  Ch.  463  ;  Glenn  v.  Whipple,  1  Beas.  50  ;  Gaskil 
v.  Sine,  2  Beaz.  401  ;  Woodruff  v.  Depue,  1  McCar.  175;  Long's  Ad.  v.  Long, 
Id.  465 ;  Weatherby  v.  57ac£,  1  C.  E.  Gr.  493 ;  Vanderveer  v.  Holcomb,  2  O. 
JE.  Gr.  550 ;  /fi«  v.  Davison,  5  C.  *#.  Gr.  229  ;  Z7uZ/?sA  v.  O'Brien,  5  a  .E.  Gr. 
230  ;  White  v.  A&refcA,  7  (7.  -E.  Gr.  79  ;  Williams  v.  TFinans,  7d.  577  ;  Atwater 
v.  Underhill,  Id.  606. 


BOWDOIN  DECREE  v.  MARY  CASKEY  ET  AL. 


It  is  the  duty  of  this  court  never  to  do  justice  by  halves,  to  beget  business  for 
another  court,  or,  when  a  cause  is  fairly  within  its  jurisdiction,  to  leave  open 
the  door  for  further  litigation  here  or  elsewhere. 

It  sometimes  calls  for  the  aid  of  a  jury,  (to  ascertain  material  facts,  when  the 
evidence  before  the  court  is  not  satisfactory,)  before,  by  its  decree,  it  closes 
the  door  of  litigation. 

Questions  of  law  and  fact  (as  to  the  existence  and  validity  of  deed*,  &c.)  may  be 
investigated  and  tried  under  the  direction  of  this  court,  either  by  a  feigned 
issue,  or  by  an  action  at  law,  brought  and  prosecuted  under  the  direction  of 
this  court. 

Upon  a  bill  by  the  assignee  of  a  mortgage,  against  the  heirs  and  executors  of  the 
mortgagor,  and  the  widow  and  heirs  of  the  father  of  the  mortgagor,  for  dis- 
covery of  a  deed  alleged  to  have  been  made  by  him  to  the  mortgagor  for  the 
mortgaged  premises,  prior  to  the  execution  of  the  mortgage;  which  deed  was 
not  recorded,  and  was  alleged  to  have  been»,lost  or  destroyed  ;  and  for  the 
foreclosure  and  sale  of  the  mortgaged  premises.  The  mortgage  was  admitted 
by  the  defendants,  and  the  evidence  was  sufficient  to  entitle  the  complainant 
to  relief  against  the  heirs  of  the  mortgagor ;  but  the  validity  of  the  deed,  and 
the  title  of  the  mortgagor  under  it,  was  denied  by  the  other  defendants,  who 
claimed  as  heirs  at  law  of  the  grantor ;  there  was  some  evidence  in  support 
of  the  bill,  as  against  them,  but  not  sufficient  to  justify  a  decree  against  them, 
and  afford  the  complainant  the  relief  sought.  The  court  would  not  make  a 
decree  for  the  relief  of  the  complainant  against  the  mortgagor  only ;  but 
directed  an  action  of  ejectment  to  be  prosecuted  in  the  supreme  court  by  the 
complainant  against  the  defendants,  others  than  the  heirs  of  the  mortgagor,  to 
try  the  questions  as  to  the  deed. 

Form  of  directions  for  prosecuting  an  ejectment  in  the  supreme  court,  under  the 
direction  of  the  court  of  chancery,  to  try  questions  as  to  the  existence  and 
validity  of  a  deed  under  which  the  mortgagor  derived  title. 


The  complainant  is  the  assignee  of  a  mortgage  given  by 
William  Caskey '  to  Joseph  Chandler  and  David  D.  Chandler. 
The  defendants  are,  the  widow  and  heirs  of  John  Caskey,  the 


428  CASES  IN  CHANCERY. 

Decker  v.  Caskey  et  al. 

administrators  of  William  Caskey,  and  the  heirs  of  the  said  Wil- 
liam Caskey,  who  was  one  of  the  heirs  of  the  said  John  Caskey, 
his  father. 

The  complainant  alleges  in  his  bill,  that  in  1816,  John  Caskey, 
being  seized  and  possessed  of  a  farm,  in  the  township  of  Wantage, 
in  the  county  of  Sussex,  did,  with  his  wife  Mary,  who  is  one  of 
the  defendants,  execute,  deliver  and  acknowledge  a  deed  of  con- 
veyance in  fee  simple  for  the  said  farm,  to  William  Caskey,  his 
son;  and  that  he,  on  the  31st  day  of  May,  1819,  mortgaged  the 
same  to  Joseph  Chandler  and  David-  D.  Chandler,  to  secure  the 
payment  of  a  large  sum  of  money,  which  yet  remains  unpaid  ; 
that  John  Caskey  and  William  Caskey  are  since  dead  :  that  the 
deed  from  John  Caskey  and  wife  to  William  Caskey  has  not  been 
recorded,  was  not  delivered  to  the  original  mortgagees  or  the  com- 
plainant, and  that  he  has  it  not,  and  knows  not  where  it  is,  or 
whether  it  is  in  existence  :  that  the  defendants,  or  some  of  them, 
have  fraudulently  possessed  themselves  of  the  deed,  and  have 
either  concealed  or  destroyed  it,  and  now  pretend  that  William 
Caskey  never  had  any  right  or  title  other  than  as  tenant  at  will  of 
his  father  and  one  of  his  heirs;  and  that  the  latter  died  seized  of 
the  premises,  which  thereupon  descended  to  his  heirs;  and  that 
his  widow  is  entitled  to  dower,  and  to  hold  possession  until  her 
dower  is  assigned  to  her.  The  prayer  of  the  bill  is  for  discovery, 
and  the  production  of  the  deed,  or  if  lost  or  destroyed  that  it  may 
be  confirmed  and  established,  and  for  foreclosure  and  sale  of  the 
mortgaged  premises. 

Mary  Caskey,  the  widow,  by  her  answer,  admits  that  a  deed 
was  signed  by  her  husband  to  her  son  William,  for  the  premises  ; 
she  denies  that  it  was  signed  by  her,  and  says  when  signed 
it  was  handed  to  her  to  be  put  away  in  a  place  of  security  :  that 
she  was  told  by  the  scrivener,  in  the  presence  of  her  husband 
and  her  son  William,  to  take  good  care  of  it ;  that  she  and  her 
husband  need  not  give  the  deed  to  her  son  William  unless  they 
had  a  mind  to,  and  that  they  could  turn  him  off  the  property 
whenever  they  thought  fit;  thereby  giving  her,  as  she  alleges, 
to  understand  that  the  property  was  still  in  her  husband  and  her- 
self, and  not  in  her  son  William:  that  she.  took  the  deed  into 
her  possession  with  the  knowledge  and  consent  of  all  parties :  that 


OCTOBER  TERM,  1831.  429 

Decker  v.  Caskey  et  al. 

the  deed  was  never  afterwards,  with  her  knowledge,  out  of  her  cus- 
tody, until  some  time  after  the  decease  of  her  husband,  and  before 
the  decease  of  her  son,  she  destroyed  it  as  she  supposed  she  had  a 
right  to  do,  conceiving  it  to  be  of  no  value,  and  fearing  an  impro- 
per use  might  be  made  of  it:  that  her  husband,  when  the  deed  was 
executed,  was  incompetent  to  dispose  of  his  property ;  and  she  in- 
sists she  is  entitled  to  dower. 

Margaret  Caskey,  one  of  the  daughters  of  John  Caskey,  in 
her  answer,  says,  she  was  present  and  saw  the  deed  from  her 
father  to  her  brother  signed.  After  it  was  signed  the  scrivener 
handed  it  to  her  father  or  her  mother,  and  told  her  mother  to 
take  care  of  it ;  that  if  William  did  not  use  them  well,  they 
could  turn  him  away  at  any  time,  for  the  land  was  theirs  ;  Wil- 
liam being  present  and  making  no  reply  or  objection.  She  is  well 
satisfied  the  deed  was  not  at  that  time  delivered  to  William  ;  that 
it  was  destroyed  by  her  mother  some  time  before  her  brother's 
death,  and  had  never,  so  far  as  she  knew  or  believed,  been  out 
of  her  mother's  custody :  that  her  mother,  when  she  took  the 
deed,  put  it  in  a  drawer,  where  she  frequently  afterwards  saw  it. 
Her  father  was  then  incompetent,  as  she  conceived,  to* make  a 
discreet  disposition  of  his  property,  and  took  no  more  interest  or 
concern  in  it  than  a  child.  That  she  had  some  knowledge  that 
a  mortgage  was  afterwards  given  by  William :  that  one  day 
when  her  mother  was  out,  and  she  in  the  cellar  at  work,  hearing 
some  strangers  talking  above,  she  went  upland  found  William 
and  his  wife,  David  D.  Chandler,  and  Robert  Carr,  esquire,  sitting 
around  a  table  with  some  papers.  Her  father  was  in  the  room, 
but  appeared  to  know  nothing  of  what  was  doing,  and  did  not  at 
that  time  even  know  the  names  of  his  children.  She  insists  that 
William  never  had  any  right  or  title  under  the  deed,  that  the 
mortgage  is  void  as  to  her,  and  that  she  is  entitled  to  part  of  the 
premises. 

John  Caskey,  Thomas  Caskey,  and  John  Z.  Drake  and  Sa- 
rah his  wife,  filed  an  answer.  They  admit  to  have  heard  that, 
about  the  time  mentioned  in  the  bill,  there  was  a  deed  made  out 
for  the  property  then  owned  and  possessed  by  John  Caskey,  in 
favor  of  William  Caskey,  and  that  it  was  signed  by  John  Cas- 
key and  was  given  to  his  wife  without  having  been  delivered  to 


430  CASES  IN  CHANCERY. 

Decker  v.  Casskey  et  al. 

William,  and  was  afterwards  destroyed  by  her  ;  but  deny  all  per- 
sonal knowledge  of  these  matters,  and  cannot  say  whether  the  in- 
formation they  have  received  was  true.  That  they  believe  John 
Caskey,  at  the  time  of  the  execution  of  the  supposed  conveyance, 
was  not  competent  to  dispose  of  his  property.  They  insist,  that 
as  against  them,  the  said  writing  is  void  ;  that  William  had  no  title 
under  it,  and  they,  as  heirs  of  John  Caskey,  are  entitled  each  to  a 
share  of  the  premises. 

Richard  Caskey,  another  of  the  sons  of  John  Caskey,  by  his 
answer,  neither  admits  nor  denies  the  allegations  of  the  bill,  and 
says  he  knows  nothing  of  them  from  having  long  lived  at  a  dis- 
tance and  out  of  the  state,  and  insists  upon  nothing  on  his  own 
behalf. 

Some  of  the  other  defendants,  being  infants,  have  by  the  clerk 
of  the  court,  as  their  guardian,  ad  litem,  filed  an  answer  in  the 
ordinary  form. 

The  other  defendants  have  filed  no  answer. 

Witnesses  were  examined,  and  the  cause  heard  before  chief  jus- 
tice Ewing,  called  to  sit  with  the  chancellor,  who  had  been  of  coun- 
sel with*  one  of  the  parties. 

T.  C.  Ryerson,  for  the  complainant ; 

W.  T.  Anderson,  for  the  defendants. 

t 
At  the  present  term,  the  following  opinion  was  delivered  : — 

EWING,  C.  J.  The  evidence  in  this  cause  is  quite  sufficient 
to  establish  the  allegations  of  the  bill,  and  to  entitle  the  com- 
plainant to  relief  against  the  heirs  of  William  Caskey;  for  he 
made  the  mortgage  in  question  of  the  whole  premises  to  Joseph 
and  David  Chandler,  by  whom  it  was  assigned  to  the  complain- 
ant. 

The  evidence,  in  connexion  with  the  answer  of  Mary  Caskey, 
the  widow  of  John  Caskey,  is  stronger  against  her  than  against 
the  remaining  defendants,  as  she  acknowledges  that  she  destroyed 
the  deed,  alleged  by  the  complainant,  and  which  she  admits 
was  signed  by  her  husband.  The  odium  spoliatoris  has  an 


OCTOBER  TERM,  1831.  431 

Decker  v.  Caskey  et  al. 

operation  against  her,  which  does  not  reach  or  affect  them. 
Whatever  might  have  been  her  opinion  of  the  validity  of  the 
deed,  or  her  estimate  of  its  value,  other  persons  were  interested 
in  it  at  the  time  she  destroyed  it;  and  she  ought  in  justice  to 
them  to  have  preserved  it,  which,  if  invalid,  would  have  given  it 
no  strength ;  or  at  least,  before  she  destroyed  it  she  should  have 
warned  them  of  her  intention,  and  enabled  them,  by  subjecting  it 
to  the  inspection  of  disinterested  persons,  to  obtain  and  secure 
thereby  such  evidence  as  their  rights  might  have  required  or  their 
interests  demanded. 

There  is  some  evidence  in  support  of  the  bill  of  complaint  as 
to  the  other  defendants,  and  yet  there  is  not,  in  my  opinion,  suf- 
ficient evidence  to  justify  a  decree  against  them,  and  to  afford  the 
complainant  the  relief  he  seeks.  On  the  relative  weight  of  the 
evidence,  I  think  it  proper  at  present  to  express  no  opinion,  from 
the  course  I  have  concluded  I  ought  to  recommend  to  the  chan- 
cellor. 

In  the  first  place,  I  think  there  is  some  evidence  of  the  material 
allegations  of  the  bill,  independent  of  the  admissions  in  the  an- 
swers, which  ought  to  operate  against  those  persons  only  by 
whom  they  were  made.  David  D.  Chandler  testifies,  that  he 
had  seen  a  deed  from  John  Caskey  to  his  son  William,  for  the 
tract  of  land  contained  in  the  mortgage;  that  he  had  seen  it  in 
the  possession  of  William,  and  that  hq.  drew  the  mortgage  from 
that  deed  ;  that  the  deed  was  signed,  as  he  recollected,  by  John 
Caskey  and  his  wife,  and  acknowledged  before  Robert  Carr,  es- 
quire, a  commissioner  for  taking  the  acknowledgment  and  proof 
of  deeds;  that  he' examined  the  acknowledgment  on  the  deed  at 
the  time  he  drew  the  mortgage,  for  the  purpose  of  seeing  whether 
it  was  properly  done,  and  he  thinks  it  was  in  the  usual  form,  and 
supposed  it  was  correctly  done.  The  deed,  he  said,  was  a  war- 
ranty deed,  in  the  ordinary  form  of  a  deed  of  bargain  and  sale, 
with  a  money  consideration.  He  farther  testified,  that  William 
had  been  in  possession  of  the  premises  from  the  year  1817, 
claiming  them  as  his  own.  It  appears,  also,  that  William  erected 
a  dwelling-house  on  the  farm,  there  being  already  one  there  in 
which  his  father  and  family  lived,  and  also  that  be  bought  a  barn 
and  moved  it  on  to  the  farm  from  an  adjoining  lot. 


432  CASES  IN  CHANCERY. 

Decker  v.  Caskey  et  al. 

In  the  second  place,  there  is  not,  as  I  have  said,  evidence  suf- 
ficient, in  my  opinion,  to  justify  the  decree  the  complainant  seeks. 
William  lived  on  the  farm,  it  is  true,  but  so  did  his  father  and 
family  up  to  the  time  of  his  decease.  The  management  of  the 
farm  by  William,  may  have  resulted  from  the  feeble  and  infirm 
state  of  health  of  his  father.  William  told  James  Evans,  one  of 
the  witnesses,  there  was  a  deed  made  out  for  him,  but  that  the 
old  people  had  possession  of  it,  and  that  if  he  lived  with  them, 
and  took  good  care  of  them  while  they  lived,  when  they  were 
done  with  it  he  was  to  have  it.  This  information  was  given  to 
Evans  before  the  mortgage  was  made.  The  mother  is  living, 
and  of  course  she  is  not  yet  done  with  it,  yet  the  complainant 
seeks  by  his  mortgage  to  foreclose  and  sell  her  interest,  as  well 
as  the  residue  of  the  premises.  -William  Caskey  farther  told 
Evans,  on  his  death-bed,  that  when  he  got  the  deed  to  make  out 
the  mortgage,  he  took  it  from  his  mother's  drawer,  and  when  he 
had  done  with  it  he  returned  it  again.  David  D.  Chandler,  who 
drew  the  mortgage,  does  not  contradict  .this  statement,  although 
he  does  not  directly  declare  or  corroborate  it.  He  got  the  deed  of 
William,  took  it  to  his  own  house  and  there  drew  the  mortgage; 
but  he  went  to  the  old  man's  house  to  get  it,  and  got  it  there,  and 
whether  William  had  then  moved  to  the  other  house,  or  yet  lived 
with  his  father,  he  did  not  remember.  David  D.  Chandler  says 
the  deed  purported  to  be  signed  by  John  Caskey  and  his  wife,  but 
he  was  unacquainted  with  their  signatures,  having  never  seen 
either  of  them  write.  He  says  it  was  in  the  ordinary  form  of  a 
deed  of  bargain  and  sale;  but  what  estate  was  conveyed  by  it, 
whether  in  fee  simple,  or  for  life,  or  for  years',  he  does  not  say. 
If  either  of  the  two  latter,  it  might  yet  have  been  in  the  ordinary 
form.  If  it  be  said,  it  may  be  presumed  Mr.  Chandler  meant  a 
bargain  and  sale  in  fee  simple,  I  answer  he  has  not  said  so,  as  he 
might  readily  have  done  if  he  intended  it,  and  I  do  not  feel  au- 
thorized, therefore,  to  raise  such  a  presumption  and  act  on  it. 
Mr.  Chandler  speaks  nothing  of  the  delivery  of  the  deed.  He 
says  he  examined  the  acknowledgment,  and  thinks  it  was  in  the 
usual  form,  and  supposed  it  was  correctly  done ;  but  he  says  he 
did  not  become  a  commissioner  until  the  year  after,  and  he  was 
not  clerk  of  the  county  until  a  subsequent  time,  and  how  far  he 


OCTOBER  TERM,  1831.  433 

Decker  v.  Caskey  et  al. 

might  then  have  been  competent  to  judge  of  the  correctness  of  an 
acknowledgment  we  have  not  the  mean's  to  ascertain.  Moreover, 
what  was  the  usual  form  ?  How  often  do  we  see  acknowledg- 
ments wholly  defective?  Why  did  he  not  state  what  the  form 
was,  and  thus  enable  this  court  to  judge  whether  it  was  apt  and 
sufficient?  If  the  reason  is,  because  he  could  not  remember  the 
form,  ought  then  what  he  says  to  suffice  as  evidence  to  establish 
so  important  a  point?  I  am  not  willing  to  affect  the  rights  and 
interests  of  these  parties  upon  such  vague  testimony. 

Under  these  views  and  impressions  of  the  cause,  the  question 
recurs,  what  ought  to  be  done?  I  am  unwilling  to  recommend 
to  the  chancellor,  at  present,  to  make  a  decree  for  the  relief  of 
the  complainant  as  against  the  heirs  of  William  Caskey  only  ; 
because  it  is  the  desire  as  well  as  the  duty  of  this  court,  never  to 
do  justice  by  the  halves — never  merely  to  beget  business  for  ano- 
ther court — and  never,  when  a  case  is  fairly  within  its  jurisdiction, 
to  leave  open  the  door  for  litigation  farther  or  in  any  other  place, 
if  it  can  possibly  be  here  closed.  It  sometimes  calls  for  the  aid 
of  a  jury  before  by  its  decree  it  closes  the  door  of  litigation,  and 
such  I  believe  is  now  the  proper  procedure.  If  a  decree  against 
the  heirs  of  William,  as  to  the  whole  premises,  or  as  to  William's 
share  as  an  heir  of  his  father  only,  were  now  to  be  made,  and 
the  bill  be  dismissed  without  prejudice  as  to  the  rest  of  the  de- 
fendants, the  complainant  would  be  left  to  seek  his  claims  as  to. 
the  rest  of  the  premises,  or  as  to  the  other  parties,  in  another  suit* 
or  in  another  court,  and  they  would  be  exposed  to  further  litiga- 
tion. The  questions  of  law  and  fact  as  to  the  existence  and  var 
lidity  of  the  deed,  so  far  as  respects  the  widow  and  the  other  heirs 
of  John  Caskey,  may  be  investigated  and  tried  under  the  direc- 
tion of  this  court,. either  by  a  feigned  issue  or  by  an  action  at 
law  brought  and  prosecuted  under  the  order  of  this  court,  to 
which  resort  is  frequently  had  on  proper  occasions :  Newland  on 
Ch.  PraG.  350.  The  proceeding  by  action  is  in  the  present  case, 
in  my  opinion,  more  convenient  and  eligible  than  a  feigned 
issue. 

I  do,  therefore,  respectfully  recommend  to  his  excellency  the 
chancellor,  to  direct  by  interlocutory  order,  that  an  action  at  law 
in  ejectment  be  brought  and  prosecuted  in  the  supreme  court  by. 

2  E 


434  CASES  IN  CHANCERY. 

Decker  v.  Caskey  et  al. 

the  complainant,  in  the  name  of  John  Den,  as  his  lessee;  that  in 
this  action  the  plaintiff  declare  for  nine  undivided  tenth  parts  of 
the  premises  in  question  ;  that  the  defendants  in  this  cause,  ex- 
cepting the  administrators  and  heirs  of  William  Casky,  do  ap- 
pear thereto,  and  be  made  defendants  therein,  upon  the  exchange 
of  the  consent  rules ;  that  the  issue  to  be  joined  be  tried  in  the 
circuit  court  in  and  for  the  county  of  Sussex;  and  upon  the  trial, 
besides  the  ordinary  confession  of  lease,  entry  and  ouster,  the  de- 
fendants do  admit  themselves  to  have  been  in  the  possession  of  the 
premises  demanded  at  the  commencement  of  the  action  of  eject- 
ment ;  and  also,  that  on  and  before  the  first  day  of  November,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  sixteen, 
the  said  John  Caskey  ^yas  seized  in  his  demesne  as  of  fee,  and 
possessed  of  the  premises  in  question  :  that  upon  the  return  of  the 
postea  in  the  said  action  into  the  supreme  court,  the  same  be  duly 
certified  into  this  court ;  that  either  party  be  at  liberty,  pending 
the  said  action,  to  apply  to  this  court  for  directions  therein,  if  need 
be;  and  that  all  further  equity,  and  the  matter  of  costs,  be  re- 
served for  a  farther  hearing,  and  for  the  final  decree  of  the  court 
of  chancery  in  this  cause. 

The  subscriber,  called  by  his  excellency  the  chancellor  to  sit 
with  him  in  the  aforesaid  cause,  in  which  he  had  been  concerned 
as  counsel  of  one  of  the  parties,  respectfully  submits  to  him  the 
foregoing  opinion.  Dated  20th  September,  1831. 

CHARLES  EWING, 

Ch.  Just.  Supreme  Court. 

CITED  in  Brunded  v.  Walker,  1  Beas.  142;  Williams  v.  Winans,  7  C.  E.  Gr.  577 


OCTOBER  TERM,  1831.  435 


Hill  v.  White  et  al. 


JONATHAN  HILL  v.  JOHN.  WHITE  AND  WIFE,  THE  EXECUTORS 
OF  CATHARINE  J.  MILLER,  ET  AL. 


The  first  mortgagee  having  prosecuted  his  bond  to  judgment  and  execution  at 
law,  under  which  he  purchased  the  mortgaged  premises  at  sheriff's  sale, 
took  possession  and  received  the  rents  and  profits.  The  second  mortgagee 
is  entitled  to  redeem,  upon  paying  the  principal  and  interest  of  the  first 
mortgage,  together  with  the  costs  incurred  in  obtaining  the  possession  ;  de- 
ducting thereout  the  rents  and  profits  received,  or  that  with  reasonable  dili- 
gence might  have  been  received  by  the  first  mortgagee  while  in  possession. 

In  such  case,  it  is  not  the  practice  to  allow  interest  on  the  cost ;  nor  can  any 
thing  be  allowed  for  renting  and  taking  care  of  the  property,  or  for  any  thing 
except  necessary  repairs. 

There  having  been  an  offer  to  redeem,  and  the  money  tendered  before  snit 
brought,  but  the  conduct  of  the  mortgagee  in  possession,  in  not  receiving, 
not  appearing  to  have  been  improper  or  vexatious,  each  party  ordered  to  pay 
their  own  costs. 

In  1818,  John  White  and  wife  gave  a  mortgage  to  Catharine 
J.  Miller,  for  two  hundred  dollars,  on  a  lot  of  land  in  Hardwick  ; 
and  in  1822,  they  gave  another  mortgage  on  the  same  property  to 
the  complainant,  Jonathan  Hill,  for  one  hundred  and  fifty  dol- 
lars. In  1826,  Catharine  J.  Miller  prosecuted  her  bond  to  judg- 
ment and  execution,  and  became  the  purchaser  at  sheriif  's  sale, 
and  took  possession,  and  has  since  that  time  been  in  possession, 
receiving  the  rents,  issues  and  profits.  The  complainant  filed  his 
bill  to  redeem,  on  payment  of  what  was  justly  due  to  the  first  mort- 
gagee, who  is  in  possession  under  the  purchase ;  or  to  have  the 
property  sold  and  the  money  equitably  distributed. 

A  question  arose  as  to  what  the  first  mortgagee  was  entitled  to  ; 
whether  she  could  rightfully  claim  the  costs  at  law  to  which  she 
was  subjected  in  getting  possession  ;  and  if  so,  whether  she  was 
entitled  to  interest  on  the  costs,  and  to  compensation  for  renting 
and  taking  care  of  the  property. 

The  case  was  argued  by 

T.  C.  Ryerson,  for  the  complainant 
W,  T.  Anderson,  for  the  defendants. 


436  CASES  IN  CHANCERY. 

Hill  v.  While  et  al. 

THE  CHANCELLOR.  The  complainant  is  unquestionably  en- 
titled to  redeem.  He  must  pay  the  principal  and  interest  of  the 
first  mortgage,  deducting  thereout  the  amount  of  the  rents  and 
profits  received,  or  that  might  with  reasonable  care  have  been 
received  from  the  property  by  the  first  mortgagee  while  in  pos- 
session. He  must  pay  the  costs  incurred  in  obtaining  possession  : 
Davy  v.  Baker,  2  Atk,  2 ;  1  Pow.  338  ;  but  it  is  not  the  prac- 
tice to  allow  interest  on  the  costs:  1  Pow.  189;  3  Pow.  921. 
Nor  can  any  thing  be  allowed  for  renting  and  taking  care  of  the 
property.  No  allowance  can  be  made  for  any  charge  of  that  kind, 
except  for  necessary  repairs. 

Let  it  be  referred  to  a  master,  to  take  an  account  of  the  rents 
and  profits  from  the  time  Catharine  J.  Miller  took  possession,  and 
also  an  account  of  the  principal,  interest  and  costs  due  on  her 
mortgage ;  on  payment  of  which,  a  proper  assignment  must  be 
made,  under  the  direction  of  the  master. 

As  to  the  costs  of  this  suit,  the  opinion  of  the  court  is,  that 
no  costs  be  allowed  to  either  party  as  against  the  other ;  and  this, 
on  account  of  the  alleged  oifer  to  redeem,  and  the  tender  of  the 
money  before  suit  brought.  If  the  conduct  of  the  mortgagee  in 
possession  had  been  improper  and  vexatious,  in  not  receiving,  I 
should  have  ordered  costs  paid  to  the  complainant ;  but  as  that 
does  not  appear  to  have  been  the  case,  I  think  it  equitable  that  each 
party  pay  his  own  costs. 

COED  in  Bigelow  v.  Cassedy,  11  0.  E.  Or.  660. 


OCTOBER  TERM,  1831.  437 


Shaver  et  al.  v.  Shaver. 


ABRAHAM  SHAVER,  JOHN  STINSON,  AND  AL.  v.  PHILIP  SHAVER. 


The  vested  right  of  a  legatee,  upon  his  death,  is  transmitted  to  his  personal 
representatives. 

The  next  of  kin  are  not  the  personal  representatives,  and  cannot,  as  such,  come 
into  court  representing  the  ancestor. 

Where  a  legatee  died  before  receiving  his  legacy,  without  a  will,  and  there  had 
been  no  administration ;  a  bill  filed  by  his  next  of  kin,  to  recover  the 
amount  due  on  the  legacy,  held  bad  on  demurrer:  such  a  claim  could  be 
properly  made  only  through  the  medium  of  an  administrator. 

The  next  of  kin  may  come  into  this  court  seeking  their  rights  against  adminis- 
trators, calling  them  to  account,  or  seeking  a  distributive  share  of  the 
intestate's  estate.  They  have  a  direct  interest,  which  they  may  lawfully 
assert. 

After  payment  of  debts,  the  administrator  is  a  trustee  for  the  benefit  of  the 
next  of  kin,  alone;  and  they  may  proceed  against  him  directly  for  what  is 
due  them. 

The  power  of  the  administrator  is  over  all  the  estate,  not  only  for  the  purpose 
of  paying  debts,  but  for  the  purpose  of  distribution ;  and  if  he  come  into 
court,  on  good  ground  of  equity,  seeking  to  recover  assets,  the  court  will  aid 
him ;  without  enquiring  whether  they  are  to  be  appropriated  to  pay  debts 
or  to  be  distributed  among  the  next  of  kin. 


Frederick  Shaver,  late  of  the  county  of  Sussex,  made  his 
last  will  and  testament  on  the  2d  October,  1819,  in  due  form  of 
law  to  pass  real  estate.  He  gave  the  farm  on  which  he  then 
lived  to  his  son  Philip  Shaver,  the  defendant,  in  these  words: 
"  I  give  to  my  [son]  Philip  Shaver  the  farm  I  now  live  on,  and 
to  his  heirs  and  assigns  for  ever,  and  to  have  possession  after  my 
wife's  decease  or  marriage :  and  it  is  my  will  and  order  that  my 
son  Philip  Shaver,  six  years  after  my  wife's  decease  or  marriage, 
pay  the  sum  of  what  the  one-fifth  part  of  my  farm  I  now  live 
on  would  then  be  worth,  which  sum  of  money  to  be  equally  di- 
vided between  my  son  William  Shaver  and  my  son  Abraham 
Shaver."  The  testator  died  on  the  20th  of  May,  1823,  and  his 
wife  died  on  the  llth  of  March,  in  the  same  year.  Philip  Sha- 
ver accepted  of  the  devise,  and  entered  into  possession,  and  still 
holds  the  same  under  the  said  will.  At  the  death  of  the  testator 
William  Shaver  and  Abraham  Shaver  were  living:  within  six 
years  after  the  death  of  the  wife,  to  wit,  on  the  6th  January, 


438  CASES  IN  CHANCERY. 

Shaver  et  al.  v.  Shaver. 

1829,  William  Shaver  died  intestate,  and  without  wife  or  is- 
sue. 

Philip  paid  to  Abraham,  after  the  expiration  of  the  six  years 
from  the  death  of  their  mother,  three  hundred  and  thirty-six  dol- 
lars, being  his  proportion  of  the  money  to  be  paid  by  Philip,  as 
directed  by  the  will. 

The  bill  alleges  that  William  Shaver  had,  at  the  time  of  his 
death,  other  estate  more  than  sufficient  to  pay  his  debts,  out  of 
which  the  debts  have  long  since  been  paid;  and  it  is  brought  by 
the  complainants,  as  next  of  kindred,  to  recover  the  amount  due 
to  them,  on  the  ground  that  it  is  not  only  a  charge  upon  the  land 
so  devised  as  aforesaid,  but  that  the  said  Philip  is  also  personally 
liable  to  pay  to  them  the  said  sum  of  three  hundred  and  thirty-six 
dollars,  except  that  part  to  which  he  is  himself  entitled  as  one  of 
the  next  of  kin. 

To  this  bill  there  is  a  general  demurrer. 

The  case  was  argued  by 

Soudder,  for  the  complainants ; 

1.  H.  Williamson,  for  the  defendant. 

Cases  cited  :— 1  Atk.  R.  502  ;  Free,  in  Ch.  290;  2  Vern.  R.  617, 
424;  2  Vcntris  R.  366;  1  Vern.  R.  204,  321;  Amb.  R.  169;  2 
Pen.  R.  758-9  ;  1  Bro.  C.  C.  119. 

THE  CHANCELLOR.  The  complainants  come  into  court  as  next 
of  kin,  claiming  the  amount  said  to  be  due  them  from  the  defend- 
ant. And  the  first  inquiry  is,  whether  they  are  entitled,  as  such 
next  of  kin,  to  come  in  and  make  their  demand ;  even  admitting 
that  William  had  a  vested  right  to  the  money.  William  died  with- 
out a  will,  and  there  has  been  no  administration,  consequently  there 
are  no  personal  representatives. 

When  the  point  was  first  raised,  it  appeared  to  me  that  there 
must  be  administration,  and  that  the  claim  could  be  properly 
made  only  through  the  medium  of  an  administrator.  Respect 
for  the  opinion  of  the  learned  counsel  who  drew  the  bill,  induced 
me  to  pause  and  examine ;  and  having  done  so,  I  am  now  satisfied 


OCTOBER  TERM,  1831.  439 


Shaver  et  al.  v.  Shaver. 


that  the  bill  cannot  be  sustained  in  its  present  shape.  If  there 
was  a  vested  right  to  the  money  in  William  at  the  time  of  his 
death,  it  was  of  course  transmissible ;  and  all  the  authorities,  as 
well  as  the  reason  of  the  thing,  show  that  such  rights  are  trans- 
mitted to  the  personal  representatives.  Next  of  kin  are  not  per- 
sonal representatives,  and  cannot  come  as  such  into  court  repre- 
senting the  ancestor.  If  they  were  permitted  to  do  so,  it  is  con- 
ceived that  much  inconvenience  would  result  from  it ;  more,  pro- 
bably, than  can  well  be  foreseen.  I  have  examined  the  books 
with  some  care,  and  have  not  been  able  to  find  a  single  case  or 
principle  to  support  the  present  proceeding.  There  are  many  in- 
stances, it  is  true,  in  which  the  next  of  kin,  as  such",  come  into 
this  court  pursuing  their  rights  against  administrators,  calling 
them  to  account,  or  seeking  a  distributive  share  of  the  estate  of 
the  intestate :  but  their  right  to  do  so  rests  upon  very  plain  prin- 
ciples. The  administrator,  in  such  cases,  is  accountable  to  them, 
and  them  only.  They  have  a  direct  interest,  which  they  may 
lawfully  assert.  After  the  payment  of  debts,  the  administrator 
is  a  trustee  for  their  benefit  alone,  and  they  may  proceed  against 
him  directly  for  what  is  actually  due  them.  But  in  this  case  the 
complainants  seek  to  get  in  their  hands  the  moneys  of  the  estate 
or  of  the  intestate,  not  from  the  administrator,  but  from  some 
third  person  in  whose  hands  the  property  happens  to  be ;  and  to 
get  it,  not  for  the  purpose  of  paying  debts,  or  applying  it  in  a 
course  of  administration,  but  of  appropriating  it  directly  to  their 
own  use. 

The  difficulty  appears  to  have  been  foreseen  by  the  counsel  of 
the  complainant :  and  to  avoid  it,  he  has  stated  in  the  bill  that 
all  the  debts  of  the  intestate  are  fully  paid.  And  the  demurrer 
may  be  taken  as  admitting  that  fact  as  between  these  parties. 
Still  I  cannot  consider  the  proceeding  a  safe  one.  If  allowed  in 
this  case,  it  must  be  in  all  other  cases  where  a  similar  allegation 
is  made,  or  where  the  next  of  kin  choose  to  come  before  the 
court  and  say  that  there  are  no  debts,  and  therefore  no  necessity 
for  administration.  Suppose  in  such  a  case,  the  demurrer  over- 
ruled. The  court  certainly  cannot  take  it  for  granted  that  there 
are  no  debts,  or  that  they  have  been  paid.  The  rights  of  credi- 
tors, if  there  should  be  any,  being  involved,  and  the  creditors 


440  CASES  IN  CHANCERY. 

Shaver  et  al.  y.  Shaver. 

not  being  before  the  court  either  personally  or  by  representative, 
satisfactory  if  not  strict  proof  would  be  required.  How  then  is  it 
to  be  proved  that  there  are  no  debts,  or  that  they  have  all  been 
paid?  By  whom,  and  under  what  authority,  will  the  payments 
have  been  made  ?  What  will  be  proper  evidence  to  show  that  the 
proceeding  is  right,  there  being  neither  law  nor  authority  to  sus- 
tain it?  It  is  easy  to  see  that  much  confusion  would  result  from 
such  a  state  of  things. 

The  counsel  seemed  to  suppose  that  in  this  case,  if  there  were  an 
administrator,  and  the  debts  were  all  paid,  he  could  have  no  equity 
to  sustain  him,  and  that  an  administratoi  can  come  into  this  court 
for  a  recovery  of  assets,  only  on  the  ground  that  they  are  necessary 
for  the  payment  of  debts.  I  apprehend  this  is  a  mistake.  The 
power  of  the  administrator  is  over  all  the  assets  of  the  estate,  not 
only  for  the  purpose  of  paying  debts,  but  for  the  purpose  of  distri- 
bution. And  if  he  comes  here  upon  good  grounds  of  equity,  seek- 
ing aid  to  recover  assets,  this  court  will  never  inquire  whether  they 
are  to  be  appropriated  to  pay  debts,  or  to  be  distributed  among  the 
next  of  kin. 

My  opinion  is,  that  the  demurrer  is  well  taken.  I  regret  the 
necessity  that  impels  me  to  this  conclusion,  whereby  the  complai- 
nants are  necessarily  turned  round  to  seek  a  remedy  in  another 
shape.  The  main  question  involved  in  the  controversy  is  one  of 
considerable  importance  and  some  difficulty.  It  is,  whether  the 
money  directed  to  be  paid  to  William  six  years  after  Philip  took 
possession  of  the  estate,  (the  same  being  a  charge  on  the  land,)  was 
a  vested  interest,  and  transmissible  to  his  representative ;  or 
whether,  in  consequence  of  his  death  before  the  expiration  of  the 
six  years,  it  sinks  into  the  land  for  the  benefit  of  the  devisee. 
The  authorities  on  both  sides  are  very  numerous.  I  have  exam- 
ined them  with  attention,  but  deem  it  inexpedient,  on  many  ac- 
counts, to  express  any  opinion  at  this  time. 

Demurrer  allowed. 


OCTOBER  TERM,  1831.  441 

Baldwin  v.  Johnson  et  al. 

JESSE  BALDWIN  v.  ELIZABETH  JOHNSON   AND  THE  HEIKS  AT 
LAW  OF  JOHN  Y.  BALDWIN,  DECEASED. 


A.  and  B.  were  partners  in  trade.  B.  having  the  management  of  the  partnership 
business,  purchased  real  property  with  the  partnership  funds,  and  took  a 
deed  in  his  own  name.  Although  the  conveyance  is  made  to  him  alone,  and 
the  legal  title  is  invested  in  him,  he  holds  one  moiety  for  the  benefit  of  his 
partner  A. 

Although  the  statute  of  frauds  declares  "  that  all  declarations  or  creations  of  trusts 
or  confidence,"  &c.  shall  be  "in  writing/'  this  is  a  plain  case  of  resulting  trust, 
and  may  be  proved  by  parol. 

A.  and  B.  agreed  to  dissolve  partnership,  upon  terms,  that  A.  should  take  all  the 
partnership  property,  and  pay  all  the  debts;  upon  which  the  title  deeds  were 
placed  in  the  hands  of  a  scrivener  to  prepare  proper  conveyances  from  B.  to  A., 
and  A.  took  the  care  and  direction  of  the  property.  The  consequence  was, 
that  the  equitable  and  beneficial  interest,  in  this  real  estate,  became  vested  in 
A. ;  and  B.  having  received  a  full  consideration  for  his  proportion,  became  a 
mere  trustee  for  the  benefit  of  A.,  as  a  purchaser :  B.  still  had  the  legal  title, 
but  as  between  him  and  A.  it  could  avail  him  nothing. 

After  the  dissolution  of  the  partnership  and  deposit  of  the  title  deeds  with  the 
scrivener,  B.  gave  a  bond  and  mortgage  on  these  lots  to  C.  for  eight  hundred 
dollars;  on  which  C.  filed  a  bill  for  foreclosure  against  B.  alone,  without 
making  A.  a  party;  and  obtained  a  decree  for  sale,  which  was  about  to 
take  place,  when  A.  filed  the  present  bill,  setting  up  his  equitable  title,  seek- 
ing relief  against  the  mortgage,  and  an  injunction  to  stay  proceedings  on 
the  former  decree.  B.,  in  his  answer  to  this  bill,  admits  the  partnership, 
and  the  dissolution,  on  the  terms  stated ;  but  denies  his  indebtedness  to  the 
firm,  and  insists  that  if  he  was  indebted,  it  was  settled  by  the  agreement 
at  the  dissolution.  As  to  ohe  part  of  the  property  purchased,  (the  Freeman 
property,)  he  admits  it  was  bought  with  the  funds  of  the  company,  and  con- 
sidered the  property  of  the  complainant  and  himself;  and  says  the  deed  was 
joade  to  him  by  mistake.  As  to  the  other  part,  (the  Baldwin  property,)  he 
admits  it  was  sold  on  an  execution  at  the  suit  of  the  firm,  that  he  bought  it 
£>r  the  sum  due,  and  took  a  deed  for  it  in  his  own  narne,  thereby  making 
hw.-self  debtor  for  the  amount  of  the  execution ;  and  says  that  he  considered 
that  property  as  belonging  to  himself;  and  denies  that  he  purchased  or 
possessed  it  for  *Jie  use  of  the  company,  or  that  there  was  any  agreement 
«r  understanding  that  this  property  should  be  purchased  on  the  joint  ac- 
count, or  that  he  ever  agreed  to  convey  it  to  the  complainant.  Yet,  it  ap- 
pearing thai  ft.  had  not  charged  himself  with  the  amount  in  the  partnership 
feooks,  (K%pt  by  him);  that  in  the  accounts  of  stock,  taken  in  several  suc- 
ceeding years,  generally  in  his  own  hand-writing,  and  the  inventory  of  the 
stock  of  the  firm  made  at  the  dissolution,  this  property  was  included  and 
•valued  as  the  property  of  the  firm ;  that  B.  had  given  in  this  property  to  the 


442  CASES  IN  CHANCERY. 

Baldwin  v.  Johnson  et  al. 

assessor,  and  paid  taxes  on  it,  several  years,  and  taken  receipts  therefor  in 
the  name  of  the  firm  ;  had  paid,  and  taken  receipts,  for  repairs  made  on  this 
property,  as  the  property  of  the  firm  ;  had  leased  the  property,  and  made 
entries  of  contracts  with  tenants,  in  the  books  of  the  firm,  in  which  the 
property  was  called  "our  houses,"  &c. ;  had  received  rents  and  given  re- 
ceipts in  the  name  of  the  firm;  charged  tenants  with  rents  in  arrear,  in  the 
books  of  the  firm;  and  treated  the  property,  in  all  respects,  as  firm  proper- 
ty : — it  must  be  considered  as  belonging  to  the  firm,  notwithstanding  the 
legal  title  was  in  B.  only. 

As  to  the  mortgage,  B.  in  his  answer  says,  it  was  given  for  the  amount  due  on 
a  note  given  by  him  to  C.  in  1813,  and  renewed  in  1819,  in  the  name  of 
the  firm,  for  money  borrowed  for  their  use.  C.  in  her  answer  states,  that 
she  still  held  the  notes,  and  took  the  mortgage  as  collateral  security ;  that 
she  had  always  understood  that  the  property  was  purchased  by  B.  in  his 
own  name,  and  for  his  own  use,  and  the  deeds  made  to  him  alone  ;  that  she 
never  heard  of  the  renting,  the  receipt  of  rent,  or  the  payment  of  taxes,  in 
the  name  of  the  firm,  or  that  there  was  any  trust  connected  with  it,  until 
about  the  time  the  present  bill  was  filed.  That  she  did  not  know  that  at  the 
time  of  making  the  mortgage  B.  was  not  in  possession  of  the  title  deeds, 
and  had  no  notice  of  any  agreement  that  they  should  be  delivered  up,  or  the 
property  conveyed  to  A. ;  and  had  not  heard  of  any  change  of  possession, 
but  believed  it  still  to  be  in  possession  of  the  tenants  who  had  rented  of  B. ; 
and  insists  that  she  is  entitled  to  protection,  as  a  bona  fide  purchaser  for 
valuable  consideration  without  notice ;  or  that,  if  the  property  should  be 
found  to  be  the  property  of  the  firm,  the  mortgage  should  be  considered 
good  as  to  one  half;  or,  if  the  property  should  be  considered  as  belonging 
exclusively  to  A.,  she  was  entitled  to  an  account  against  the  firm,  for  the 
money  due  on  the  notes,  to  be  paid  by  A. — But  B.  never  having  had  exclu- 
sive possession,  and  at  the  time  of  giving  the  mortgage  not  being  in  posses- 
sion of  the  property  by  himself  or  his  tenants,  the  property  being  under- 
stood and  reputed  by  the  tenants  then  in  possession  to  be  the  property  of  the 
firm ;  and  B.  not  being  then  in  possession  of  the  title  deeds,  which,  if  en- 
quired for,  he  could  not  have  produced;  and  C.  having  understood  from 
B.  that  the  title  was  in  him,  and  rested  on  his  statement  without  having  ex- 
amined, seen  or  enquired  for  the  title  deeds,  or  made  any  enquiry  of  the 
tenants  in  possession,  who  would  have  informed  her  that  the  property  was 
not  the  separate  property  of  B.,  but  belonged  to  the  firm,  or  was  claimed  as 
such,  or  given  her  such  information  as  to  put  her  on  enquiry  :  her  claim  to 
be  considered  in  the  light  of  a  bona  fide  purchaser  for  valuable  consideratioa, 
without  notice,  cannot  be  sustained. 

Every  man  purchases  at  his  peril,  and  is  bound  to  use  some  reasonable  diligence 
in  looking  to  the  title  and  the  competency  of  the  seller:  it  will  not  answer  to 
rest  on  mere  reputation  or  belief,  unless  the  party  intends  to  rely  on  his 
covenant  alone. 

Semble.  C.  cannot  claim  the  protection  of  a  bona  fide  purchaser  without  no- 
tice, because  there  was  no  money  paid ;  the  mortgage  was  taken  as  a  col 


OCTOBER  TERM,  1831.  443 

Baldwin  v.  Johnson  et  al. 

lateral  security,  the  old  notes  were  not  given  up,  and  consequently  she  was 
not  injured. 

The  rule  is,  that  a  person  claiming  protection  (as  a  bona  fide  purchaser)  must 
have  paid  the  money ;  to  have  secured  it  is  not  sufficient. 

B.  having  made  vhe  mortgage  without  authority,  and  C.  having  received  it  with- 
out investigation,  relying  on  the  integrity  of  the  mortgagor,  when  the  slight- 
est investigation  would  have  sufficed  to  satisfy  her  that  he  had  no  right  to 
make  it;  the  mortgage  cannot  be  sustained  against  A. 

If  the  property,  being  real  property,  is  to  be  considered  as  a  tenancy  in  common, 
C.  had  notice,  or  might  have  had  notice,  that  the  beneficial  interest  was 
vested  in  A.,  and  that  B.  by  his  mortgage  could  not  bind  or  convey  any  in- 
terest in  the  premises  ;  and  the  mortgage  is  unavailing. 

Nor  is  the  mortgage  available,  in  equity,  against  the  moiety  of  the  property,  al- 
though the  legal  title  was  in  B.  at  tne  time ;  as  C.  had  notice,  or  might  have 
had  notice,  that  it  was  or  had  been  partnership  property  ;  (and  the  partner- 
ship being  dissolved,)  that  B.  had  no  right  to  make  the  mortgage. 

After  the  dissolution  of  a  partnership,  the  authority  of  an  individual  partner 
over  the  joint  stock  ceases;  he  cannot  use  it  for  his  private  benefit,  or  in  any 
way  inconsistent  with  the  closing  of  the  partnership  business. 

The  whole  of  the  partnership  property  is  liable  for  the  partnership  debts ;  if  all 
cannot  be  paid,  they  must  be  paid  pro  rata:  this  court  cannot  establish  a 
preference,  on  the  ground  of  an  unauthorized  act  of  one  of  the  partners  after 
the  dissolution :  the  notes,  therefore,  were  not  ordered  to  be  paid  out  of  the 
mortgaged  premises. 

This  is  a  bill  for  an  injunction  and  relief;  and  the  material 
facts  necessary  to  the  correct  understanding  of  the  case,  are  the 
following  : — In  March,  1807,  Jesse  Baldwin  and  John  Y.  Bald- 
win entered  into  partnership  in  trade  in  Newark,  under  an  agree- 
ment, that  Jesse  Baldwin  was  to  furnish  a  capital  of  ten  thou- 
sand dollars  in  merchandize ;  to  let  to  the  company,  without  any 
charge  or  rent,  his  store-house  in  the  town;  and  to  let  his  dwel- 
ling-house, adjoining  the  store-house,  to  John  Y.  Baldwin,  for 
two  hundred  dollars  a  year,  from  which  was  to  be  deducted  one 
hundred  dollars  a  year  for  the  board  of  a  clerk.  John  Y.  Bald- 
win was  not  bound  to  furnish  any  capital,  but  to  be  equally  in- 
terested in  the  profits  and  losses  of  the  business ;  and  upon  a  dis- 
solution of  the  partnership,  the  dwelling-house,  store-house  and 
capital  furnished,  are  to  belong  to  Jesse  Baldwin.  The  business 
was  carried  on  under  the  name  of  John  Y.  Baldwin  &  Co.,  un- 
til the  1st  of  May,  1817,  chiefly  under  the  management  of  John 
Y.  Baldwin,  the  complainant  being  in  the  city  of  New- York. 
In  May,  1817,  the  complainant  returned  to  Newark,  and.  finding 


444  CASES  IN  CHANCERY. 

Baldwin  v.  Johnson  et  al. 

the  accounts  of  the  partnership  in  a  bad  situation,  he  endeavored 
to  adjust  them  and  bring  the  partnership  to  a  close,  which  was 
not  effected,  however,  until  the  1st  of  January,  1820;  previously 
to  which  the  said  John  Y.  Baldwin  had  conveyed  his  real  estate, 
containing  about  forty-eight  acres  of  land  in  Caldwell,  to  his 
mother-in-law,  Elizabeth  Johnson,  one  of  the  defendants.  The 
partnership  was  dissolved  on  the  1st  of  January,  1820,  and  John 
Y.  Baldwin  was  indebted  to  the  firm  several  thousand  dollars.  It 
was  dissolved  upon  an  agreement,  that  Jesse  Baldwin  was  to 
take  all  the  partnership  property  and  pay  all  the  debts.  An  in- 
ventory was  made  of  the  property  and  debts,  and  John  Y.  Bald- 
win removed  from  the  dwelling-house  on  the  1st  of  April  fol- 
lowing. 

During  the  existence  of  the  partnership,  they  obtained  a  judg- 
ment and  execution  against  one  Esther  Baldwin,  under  which  the 
sheriff  of  Essex  exposed  to  sale  two  houses  aud  lots  in  Newark, 
an4  they  were  purchased  for  the  use  of  the  company,  for  the 
amount  of  the  execution.  A  conveyance  was  received  for  the 
use  of  the  firm,  dated  24th  November,  1813,  and  possession 
taken  accordingly  ;  after  which,  and  until  the  time  of  dissolving 
the  partnership,  it  was  held  and  used  as  partnership  property ; 
the  taxes  were  paid  out  of  the  funds  of  the  company,  and  the 
rents  and  profits  went  to  their  credit  and  were  applied  to  their 
business.  At  another  sheriff's  sale,  two  other  lots  of  land,  (the 
property  of  H.  Freeman,)  were  purchased  in  like  manner,  for  the 
use  of  the  company ;  one  of  which  was  afterwards  sold,  and  the 
money  paid  to  the  credit  of  the  company.  The  sheriff's  deeds 
were  executed  to  John  Y.  Baldwin  alone,  and  no  reference  was  had 
in  the  deeds  to  the  interests  of  the  complainant.  At  the  time  of 
dissolving  the  partnership,  this  was  discovered,  and  John  Y.  Bald- 
win agreed  to  execute  a  conveyance  to  the  complainant.  For  this 
purpose  the  deeds  were  placed  in  the  hands  of  an  attorney,  but  the 
proper  conveyance  was  never  made  and  executed.  These  lands  were 
inventoried  at  the  time  of  the  dissolution,  as  part  of  the  partner- 
ship property,  aud  valued  at  two  thousand  dollars,  since  which 
Jesse  Baldwin  has  been  in  the  sole  possession  of  them,  and  has  re- 
ceived the  rents  and  profits. 

On  the  2d  February,  1820,  John  Y.  Baldwin  executed  a  bond 


OCTOBER  TERM,  1831.  445 

Baldwin  v.  Johnson  et  al. 

and  mortgage  to  the  defendant,  Elizabeth  Johnson,  for  eight  hun- 
dred dollars,  covering  the  lots  so  sold  at  sheriff's  sale,  and  pur- 
chased for  the  firm.  The  mortgage  was  recorded  on  the  27th  June 
following. 

John  Y.  Baldwin  married  the  daughter  of  Elizabeth  Johnson. 
When  the  mortgage  was  given  John  Y.  Baldwin  was  not  in  pos- 
session of  the  title  deeds,  and  the  lots  were  in  the  possession  of 
Jesse  Baldwin,  under  the  agreement  dissolving  the  partnership, 
which  was  known,  or  might  have  been  known. 

Elizabeth  Johnson  filed  her  bill  to  foreclose  the  mortgage,  ob- 
tained a  decree,  and  the  property  was  advertised  for  sale.  Jesse 
Baldwin  was  no  party  to  the  bill,  and  had  no  notice  of  it  until  the 
property  was  about  to  be  sold.  Jesse  Baldwin  called  on  Mrs. 
Johnson  for  explanation.  She  told  him  she  had  lent  the  eight 
hundred  dollars  to  John  Y.  Baldwin,  and  taken  for  it  the  notes  of 
John  Y.  Baldwin  &  Co. ;  of  which  Jesse  Baldwin  had  until  that 
time  no  knowledge.  They  were  not  mentioned  at  the  time  of  the 
dissolution,  nor  inventoried  among  the  partnership  debts. 

The  bill  then  alleges,  that  those  notes  for  eight  hundred  dollars, 
were  the  consideration  of  the  deed  from  J.  Y.  Baldwin  to  Elizabeth 
Johnson  for  the  Caldwell  property,  as  above  mentioned ;  and  also 
that  during  the  existence  of  the  partnership,  J.  Y.  Baldwin  received 
sundry  large  sums  of  money  due  to  the  complainant  individually; 
and  if  Mrs.  Johnson  did  loan  eight  hundre^  dollars  to  J.  Y.Bald- 
win, it  went  to  pay  his  own  debts,  and  was  not  used  for  the  benefit 
of  the  partnership. 

The  bill  insists  that  J.  Y.  Baldwin  could  not  charge  the  lands 
with  the  mortgage  as  against  the  complainant ;  or  if  he  could,  that 
the  money,  or  the  whole  of  it,  is  not  due.  It  further  insists,  that 
the  promissory  notes  given  in  the  name  of  John  Y.  Baldwin  & 
Co.  are  fraudulent,  and  ought  to  be  delivered  up;  and  in  the  mean 
time,  that  the  safe  should  be  stayed. 

The  answer  of  John  Y.  Baldwin  admits  the  partnership,  and 
the  dissolution  upon  the  terms  mentioned  in  the  bill.  He  denies 
his  indebtedness  to  the  firm,  or  if  indebted,  says  it  is  to  a  small 
amount  only,  which  was  settled  by  the  agreement  at  the  time  of 
the  dissolution.  He  admits  that  he  conveyed  to  Elizabeth  John- 
Bon,  in  1819,  his  estate  in  Caldwell,  and  that  the  consideration 


446  CASES  IN  CHANCERY. 

Baldwin  v.  Johnson  et  al. 

mentioned  in  the  deed  was  eight  hundred  dollars,  which  was  not 
paid  in  cash  at  the  time  of  making  the  deed  ;  but  that  at  the  time 
he  considered  himself  justly  indebted  to  the  said  Elizabeth  John- 
son, who  was  his  mother-in-law,  in  upwards  of  the  sum  of  one 
hundred  dollars,  for  small  sums  borrowed  at  different  times;  and 
also,  as  one  of  the  firm  of  J.  Y.  Baldwin  &  Co.,  in  the  sum  of 
one  hundred  and  fifty  dollars  and  upwards,  for  interest  on  the 
promissory  note  she  held  against  the  firm.  And  he  alleges  that 
the  conveyance  was  not  made  to  his  mother-in-law  in  the  expecta- 
tion of  any  difficulties  with  the  complainant;  that  the  lands  were 
not  worth  the  amount,  and  were  incumbered  with  his  step-mother's 
dower.  He  admits  the  taking  of  the  inventory,  but  says  he  was 
not  present  the  whole  time  it  was  making  out. 

As  to  the  property  purchased  at  the  sheriff's  sale,  he  says,  that 
the  property  of  Esther  Baldwin  was  sold  at  sheriff's  sale  on  an 
execution  in  favor  of  the  firm ;  that  he  became  the  purchaser  for 
the  amount  of  the  execution,  and  accordingly  took  a  deed  for  it  in  his 
own  name;  thereby  making  himself  debtor  to  the  firm  for  the 
amount  of  the  execution.  He  denies  that  he  purchased  it  or  pos- 
sessed it  for  the  company  -r  but  says  that  he  may  have  used  the 
rents  and  profits,  or  some  part  thereof,  for  the  benefit  of  the  firm, 
and  paid  taxes  with  the  money  of  the  firm,  without  crediting  or 
charging  himself,  as  the  case  might  be — all  which  may  appear  by 
the  books  of  the  firm.  He  says  further,  that  there  was  no  agree- 
ment or  understanding  that  this  property  should  be  purchased  on 
their  joint  account. 

In  regard  to  the  other  property  purchased  at  sheriff's  sale,  he 
admits  it  was  bought  with  funds  of  the  company,  and  that  he  has 
always  considered  it  as  the  joint  property  of  the  complainant 
and  himself.  He  denies  any  fraud  or  mistake  in  making  out  the 
sheriff's  deed  of  the  Esther  Baldwin  property,  but  alleges  that 
the  other  deed  was  made  to  him  by  accident  or  mistake  of  the 
sheriff. 

In  regard  to  inventorying  the,  lands,  he  says  it  may  be  so,  he 
has  no  recollection  of  it,  but  denies  that  he  ever  agreed  to  make 
any  conveyance  to  the  complainant  of  the  Esther  Baldwin  pro- 
perty j  that,  on  the  contrary,  he  refused  to  do  so.  He  admits  that 
the  complainant  has  been,  since  the  dissolution,  in  possession, 


OCTOBER  TERM,  1831.  447 


Baldwin  v.  Johnson  et  al. 


and  in  the  receipt  of  the  rents  and  profits  of  all  the  said  premises, 
but  it  has  been  against  the  consent  of  the  defendant,  so  far  as  re- 
spects the  Esther  Baldwin  property. 

He  admits  the  bond  and  mortgage  given  to  Elizabeth  Johnson 
on  these  premises,  and  insists  that  it  was  given  to  secure  her  the 
payment  of  eight  hundred  dollars,  which  he,  as  one  of  the  late 
firm  of  John  Y.  Baldwin  &  Co.  had  borrowed  of  her  for  the 
benefit  of  the  firm,  in  May,  1813,  and  which  money  was  either 
paid  to  the  complainant,  or  applied  to  the  use  and  benefit  of  the 
firm  or  the  complainant;  that  he  gave  the  note  of  the  firm  for 
the  money,  and  in  1819  he  renewed  the  note  in  the  partnership 
name,  and  afterwards,  to  secure  the  payment  of  it,  gave  her  the 
bond  and  mortgage.  He  denies  the  charge  of  concealment  as  to 
the  mortgage,  but  says  he  does  not  recollect  of  having  ever  ac- 
quainted the  complainant  with  the  existence  of  the  bond  and  mort- 
gage or  the  notes. 

The  answer  of  Mrs.  Johnson,  the  other  defendant,  is  very 
full ;  but  for  the  proper  understanding  of  the  question  in  this 
cause,  it  is  only  necessary  to  state  in  relation  to  it,  that  she  ad- 
raits  the  giving  of  the  deed  for  the  Caldwell  property  by  J.  Y. 
Baldwin  to  herself  in  September,  1819.  She  supposes  it  worth 
four  hundred  or  four  hundred  and  fifty  dollars,  clear  of  incum- 
brances.  At  the  time  of  making  the  deed,  he  was  indebted  to 
her  in  one  hundred  and  seventy -six  dollars  aud  fifty  cents,  for  in- 
terest on  the  note  of  the  firm,  and  for  some  small  sums  loaned 
by  her  to  him  from  time  to  time.  She  states  there  was  no  previ- 
ous agreement  between  herself  and  J.  Y.  Baldwin  as  to  the  ma- 
king of  this  deed.  In  regard  to  the  property  formerly  of  Esther 
Baldwin,  and  also  the  Freeman  property,  purchased  at  sheriff's 
sale,  she  always  understood  it  was  purchased  by  J.  Y.  Baldwin 
in  his  own  name,  and  for  his  own  use,  and  that  the  deed  was 
made  to  him  alone.  She  never  heard  that  the  rents  and  profits 
went  to  the  firm,  or  that  they  paid  the  taxes,  or  that  there  was 
any  trust  connected  with  it,  until  shortly  before  or  about  the 
time  complainant's  bill  was  filed.  She  insists  that  she  was  igno- 
rant of  any  change  of  possession  of  this  property,  as  stated  by 
the  complainant,  and  believes  it  remained  in  possession  of  the 
same  tenants  that  had  rented  of  and  held  under  John  Y.  Bald- 


448  CASES  IN  CHANCERY. 

Baldwin  v.  Johnson  et  al. 

win  ;  and  if  there  was  a  constructive  possession  on  the  part  of  the 
complainant,  she  had  no  notice  of  it. 

The  answer  further  states,  that  she  is  the  mother-in-law  of 
John  Y.  Baldwin.  In  1813  he  borrowed  of  her  eight  hundred 
dollars,  for  the  use  of  the  firm,  and  gave  her  the  note  of  the 
firm,  which  she  accepted,  payabJe  with  interest.  The  note  re- 
mained unpaid  until  May,  1819,  when  J.  Y.  Baldwin  gave  her 
a  new  note  for  the  principal  sura,  in  the  name  of  the  firm,  which 
was  given  and  received  as  a  mere  renewal  of  the  original  note. 
In  1820,  and  after  the  dissolution  of  the  partnership,  hearing  of 
difficulties  between  Jesse  and  John  Y.  Baldwin,  and  becoming 
anxious  about  the  debt,  she  spoke  to  John  Y.  Baldwin  on  the 
subject,  and  he  thereupon  proposed  to  mortgage  to  her  the  pro- 
perty already  mentioned  ;  and  believing  that  it  was  a  sufficient 
security  for  the  debt,  and  that  it  was  the  property  of  J.  Y.  Bald- 
win individually,  she  agreed  to  accept  it.  She  says,  that  if  at 
the  time  of  making  the  mortgage,  J.  Y.  Baldwin  was  not  in 
possession  of  the  title  deeds,  she  did  not  know  it,  nor  had  she 
notice  of  any  agreement  whereby  they  were  to  be  delivered  up  to 
the  complainant,  or  whereby  the  property  was  to  be  conveyed  to 
him.  She  denies  any  intentional  concealment  of  the  mortgage  ; 
and  alleges  that  she  took  the  mortgage,  not  in  lieu  of  the  notes, 
but  as  collateral  security  merely,  and  that  the  whole  of  the  prin- 
cipal and  interest  is  due  on  it,  except  so  far  as  a  part  of  it  may 
be  considered  paid  by  a  charge  against  her  on  the  books  of  the 
company,  of  one  hundred  and  seventy-eight  dollars  and  forty- 
four  cents,  and  by  the  real  and  fair  value  of  John  Y.  Baldwin's 
interest  in  the  Caldwell  property,  conveyed  to  her  as  aforesaid. 
She  insists  that  if  the  mortgaged  property  should  be  found  to 
have  been  the  property  of  John  Y.  Baldwin  &  Co.,  yet  that  the 
mortgage  should  be  considered  valid  as  to  one  half,  being  J.  Y. 
Baldwin's  part ;  or  that,  if  the  property  should  be  considered  as 
exclusively  Jesse  Baldwin's,  yet  that  she  will  be  entitled  to  an 
account  as  against  the  company  of  the  money  due  her  on  the 
notes,  and  to  have  the  same  decreed  to  be  paid  by  the  complain- 
ant. She  denies  that  she  ever  intended  to  treat  the  debt  due  her 
as  the  individual  debt  of  John  Y.  Baldwin,  and  prays  that  she 


OCTOBER  TERM,  1831.  449 

Baldwin  v.  Johnson  et  al. 

may  not  be  affected  by  atny  fraudulent  transaction  on  the  part  of 
John  Y.  Baldwin,  if  any  such  should  be  discovered. 
.  Depositions  were  taken,  and  the  partnership  books,  documents 
and  vouchers  exhibited ;  the  substance  of  which  appears   in   the 
opinion  of  the  court.     The  case  was  argued  by 

E.  Vanarsdale,  for  complainant. 
J.  C,  Hornblower,  for  defendants. 

Cases  cited:— 5  Ves.  jr.  193;  2  Daw's  P.  C.  242;  3  Kenfs  C. 
14;  Smith,  v.  Wood,  ante,  74;  2  Mad.  C.  112;  1  Daniel's  C.  R. 
80;  13  Ves.  jr.  120;  16  Ves.  jr.  249  ;  1  Merw.  R.  284;  1  John.  C. 
R.  299;  Montague,  101;  11  Ves.  jr.  3;  I  Atk.  ,8.538;  3  Atk. 
R.  304,  814;  2  Freeman's  R.  175;  Finch's  R.  219;  1  John. 
C.  R.  575;  4  Dessau's  R.  286;  M'df.  222,  (3d  edit.);  1  Ver.  R. 
246  ;  9  Ves.  jr.  32  ;  3  P.  Wms.  281  ;  7  John.  C.  R.  67  ;  5  Jfo«o»'« 
,R.  57 ;  1  Pefe/s'  £7.  £  #,  373  ;  Jeremy,  446-7  ;  Fran.  Max.  1 ;  1 
Fer.  R.  244;  3  SoZfc.  £.  84;  2  CA.  #.  360;  1  Ver.  52;  %  Ca. 

354. 

i  M*rl 

THE  CfiASCEttm,  The  great  object  of  the  bill  is  to  avoid 
the  mortgage  given  by  John  Y.  Baldwin  to  Mrs.  Johnson,  in 
1820)  after  the  dissolution  of  the  partnership;  on  the  ground 
that,  as  regards  the  complainant,  it  is  fraudulent,  and  therefore, 
cannot  be  sustained. 

The  complainant  has  sought,  in  the  first  place,  to  establish,  by 
the  evidence,  that  the  property  on  which  the  mortgage  was,  giv- 
en, was  at  the  time  partnership  property;  that  although  the- 
deeds  were  given  to  John  Y.  Baldwin  in  his  own  name,,  yet  that 
in  truth,  Jesse  Baldwin  had  in  equity  an  equal  interest  in  the 
purchase. 

So  far  as  regards  the  property  in  Franklin  street,  formerly 
Hiram  Freeman's,  the  fact  is  established  beyond  all  doubt.  It 
'was  purchased  at  the  sale  with  the  partnership  funds;  and  al- 
though the  conveyance  was  made  to  John  Y.  Baldwin  alone,  and 
therefore  the  legal  title  vested  in  him,  he  held  the  one  moiety  in 
trust  for  the  benefit  of  Jesse.  It  is  the  plain  case  of  a  resulting 

2  p 


450  CASES  IN  CHANCERY. 

Baldwin  v.  Johnson  et  al. 

trust,  and  may  be  proved  by  parol.  The  fact  is  admitted  in  ex- 
press terms  in  the  answer  of  John  Y.  Baldwin.  It  was  after- 
wards used  as  the  property  of  the  firm.  They  received  the 
rents,  paid  the  taxes,  made  the  repairs,  and  every  thing  that  was 
done  in  relation  to  it  was  in  the  name  of  the  firm.  J.  Y.  Bald- 
win alleges  that  the  deed  was  made- to  him  by  mistake;  and  so 
far  as  he  is  concerned,  or  his  interests  brought  in  question,  there 
can  be  no  difficulty. 

As  respects  the  property  in  Fair  street,  formerly  Mrs.  Baldwin's, 
the  case  is  not  so  clear.  John  Y.  Baldwin  states,  in  his  answer, 
explicitly,  that  he  considered  that  as  belonging  to  himself.  He 
admits  that  he  purchased  it  with  the  partnership  funds,  for  it 
was  sold  on  an  execution  in  favor  of  the  firm  ;  but  says  that  he 
made  himself  debtor  to  the  firm  for  that  amount,  and  that  in  pre- 
paring that  deed,  whereby  the  property  was  conveyed  to  him  in- 
dividually, there  was  no  mistake.  He  assigns  several  reasons  which 
induced  him  to  make  the  purchase  for  his  own  benefit  ;  some  of 
them  are  certainly  very  plausible,  and  are  rendered  the  more  so 
by  the  answer  of  his  co-defendant,  Mrs.  Johnson.  He  denies 
that  he  held  possession  of  it  for  the  use  of  the  company,  or  that 
the  same  was  held  and  used  as  partnership  property. 

I  think,  however,  that  the  evidence  is  conclusive  to  show  that 
this  defendant  is  mistaken  in  this  part  of  his  answer.  There  are 
a  great  variety  of  facts  going  to  show  that  the  property  was  al- 
ways held  under  the  company,  and  treated  l»y  them  as  their  pro- 
perty ;  and  I  do  not  see  how  it  is  possible  to  reconcile  these  facts- 
with  the  allegations  in  the  answer.  The  deed  bears  date  in  1813. 
In  March,  1814,  a  general  inventory  was  taken  of  the  partner- 
ship stock  and  property,  as  is  customary  among  merchants.  In 
that  inventory  is  embraced,  and  in  the  handwriting  of  John  Y. 
Baldwin,  this  property  in  Fair  street,  being  the  same  that  was 
Mrs.  Baldwin's;  and  it  is  valued  at  one  thousand  dollars,  and 
footed  up  with  the  valuation  of  the  house  in  Franklin  street, 
which  is  admitted  to  be  the  property  of  the  firm.  In  December 
of  the  same  year,  the  taxes  were  paid  to  the  town  collector.  The  • 
receipt  is  drawn  by  John  Y.  Baldwin,  and  is  somewhat  indis- 
tinct; but  the  property  in  Fair  street  is  distinguished  in  it  either 
as  the  property  of  the  firm,  or  of  Jesse  Baldwiu,  and  not  of  J.  Y. 


OCTOBER  TERM,  1831.  451 

Baldwin  v.  Johnson  et  al. 

Baldwin.  In  March,  1815,  another  inventory  of  stock,  &c.  was 
taken,  part  of  which  is  in  the  hand-writing  of  John  Y.  Baldwin 
and  part  in  that  of  Jesse  Baldwin.  In  this  is  also  included  the 
house  in  Fair  street,  valued  at  one  thousand  dollars,  and  that 
part  of  the  inventory  is  in  the  hand-writing  of  John  Y.  Baldwin. 
In  the  inventory  of  1816,  also  in  the  hand-writing  of  John  Y. 
Baldwin,  both  houses  are  included.  In  another  inventory,  taken 
in  September,  1816,  mention  is  made  of  two  or  three  houses, 
which  it  is  presumed  has  reference  to  the  same  ones,  but  they  are 
not  designated,  and  this  inventory  appears  not  to  be  in  the  hand- 
writing of  John  Y.  Baldwin.  In  January  of  the  same  year, 
(1816,)  the  direct  tax  was  paid  to  Seth  Woodruff  for  the  year 
1815.  The  receipt,  drawn  by  John  Y.  Baldwin,  is  as  follows: 
"Newark,  Jan.  28,  1816.  Received  from  Messrs.  John  Y.  Bald- 
win &  Co.  the  sum  o£  three  dollars  and  thirty-five  cents,  in  full 
of  direct  tax  for  their  house,  lately  occupied  by  Mrs.  Esther  Bald- 
win in  Fair  street,"  &c.  In  October,  1816,  a  receipt  was  given 
by  Paul  Brown  to  John  Y.  Baldwin  &  Co.  for  a  charge  in  repair- 
ing the  pump  of  their  house,  in  Fair  street.  This  receipt  was 
drawn  by  John  Y.  Baldwin.  In  May,  1816,  a  similar  receipt 
was  given  by  Job  Meeker  to  John  Y.  Baldwin  &  Co.  for  work 
done  for  their  houses  in  Fair  street.  This  was  also  drawn  by 
John  Y.  Baldwin.  In  July,  1816,  there  are  sundry  entries  made 
in  the  company's  common  day  book,  of  contracts  made  with  va- 
rious persons  for  renting  the  houses  in  Franklin  and  Fair  streets. 
These  entries  are  made  by  John  Y.  Baldwin  ;  and  in  describing 
the  houses  in  Fair  street,  he  in  every  instance,  save  one,  calls 
them  our  houses.  The  same  book  shows  that  the  rents  were 
paid.  In  1817,  a  part  of  the  property  was  occupied  by  David 
Bail.  In  July  he  paid  the  first  quarter's  rent,  and  took  a  receipt 
from  John  Y.  Baldwin,  in  the  name  of  John  Y.  Baldwin  &  Co. 
To  Mrs.  Williams,  who  occupied  another  part,  a  similar  receipt 
was  given  by  Jesse  Baldwin  for  one  quarter's  rent;  and  under- 
neath it,  on  the  same  paper,  are  memoranda  made  of  the  receipt 
of  the  other  three  quarters.  In  1818,  David  Conger  is  charged 
in  the  company's  ledger  with  twenty-four  pounds  rent  for  that 
year,  for  the  house  in  Fair  street,  and  this  charge  is  made  by 
John  Y.  Baldwin.  In  1819,  Mrs.  Williams  occupied  part  of  the 


452  CASES  IN  CHANCERY. 

Baldwin  v.  Johnson  et  al. 

house  in  Fair  street,  and  in  July  of  that  year,  John  Y.  Baldwin 
gave  her  a  receipt  for  rent  in  the  name  of  the  firm.  And  in  1820, 
in  the  general  inventory  that  was  made  of  the  stock  and  property 
of  the  company  at  the  time  of  the  dissolution,  the  three  houses 
were  again  included.  In  addition  to  this,  it  is  testified  by  Isaac- 
Nichols,  the  assessor  of  the  town,  that  he  was  assessor  from  1817  to 
1823;  that  he  was  directed  by  John  Y.  Baldwin  to  assess  the  pro- 
perty in  Franklin  street  and  Fair  street  to  the  firm  of  John  Y. 
Baldwin  &  Co.,  and  that  it  was  so  assessed  until  John  Y.  Baldwin 
left  the  store,  since  which  he  has  assessed  it  to  the  complainant,  at 
his  direction. 

These  facts  and  circumstances  show  very  conclusively,  that  not 
only  the  house  in  Franklin  street,  but  the  houses  in  Fair  street 
also,  were  considered  by  John  Y.  Baldwin  as  belonging  to  the 
firm.  They  were  treated  by  him  as  such,  in  all  respects.  Ho 
states  in  his  answer,  that  he  considered  himself  a  debtor  to  the 
firm  for  the  amount  paid ;  but  I  do  not  find  that  he  ever  charged 
himself  with  it,  or  gave  any  information-  to  his  partner  that  he 
considered  the  property  as  his  own.  *-. 

The  result  is,  that  on  the  1st  of  January,  1820,  the  property  be- 
longed to  the  firm,  and  must  be  so  considered  in  this  court,  not- 
withstanding the  legal  title  was  in  John  Y.  Baldwin.  On  the  1st 
of  January,  1820,  the  partnership  was  dissolved  by  mutual  con- 
sent. The  terms  were,  that  Jesse  Baldwin,  the  complainant, 
should  take  all  the  property  and  pay  all  the  debts ;  and  in  the 
schedule  then  made,  the  houses  in  Fair  street  were  considered  as 
belonging  to  the  partnership.  From  that  time  the  whole  manage- 
ment and  direction  of  the  property  was  assumed  and  exercised  by 
the  complainant.  He  made  leases,  received  rents,  and  acted  in 
every  other  respect  as  owner ;  and  it  appears  that  the  title  deeds 
were  placed,  by  common  consent,  in  the  hands  of  an  attorney,  to 
have  the  necessary  conveyance  prepared,  to  pass  the  legal  title  to 
the  complainant. 

After  the  dissolution,  and  the  agreement  upon  which  it  was 
founded,  and  as  a  necessary  consequence  resulting  therefrom,  the 
equitable  and  beneficial  interest  in  this  real  estate  became  vested 
in  the  complainant ;  and  John  Y.  Baldwin,  having  received  a 
fair  consideration  for  all  his  proportion,  became  a  mere  trustee  for 


OCTOBER  TERM,  1831.  453 

Baldwin  v.  Johnson  et  al. 

the  benefit  of  the  purchaser.  He  still  had  the  naked  title,  but 
as  between  him  and  his  former  co-partner,  it  could  avail  no- 
thing. 

I  do  not  consider  it  necessary  to  discuss  the  question  which  has 
been  much  agitated  in  the  chancery  of  England,  as  well  as 
our  country,  whether  real  estate,  acquired  with  partnership 
funds,  is  to  be  considered  as  a  part  of  the  joint  stock,  and  as  such 
must  be  brought  into  the  common  fund  ;  or  whether  it  is  to  be 
considered  as  a  tenancy  in  common,  and  that  the  rules  of  part- 
nership property  do  not  apply  to  it.  For,  in  this  case,  indepen- 
dently of  any  partnership  regulations,  there  was  an  actual  agree- 
ment and  sale  of  the  estate ;  and  even  if  we  consider  these  partners 
as  tenants  in  common  in  respect  of  these  lands,  yet  by  the  agree- 
ment and  sale,  which  were  made  in  good  faith,  and  for  a  valuable 
consideration,  the  complainant  became  entitled,  and  in  equity  is 
considered  as  owning  the  whole  in  severally. 

It  follows  as  a  necessary  consequence,  that  after  the  sale  and 
dissolution,  John  Y.  Baldwin  had  no  right,  as  against  the  pur- 
chaser, to  treat  this  property-  as  his  own.  If  it  were  part  of  the 
joint  stock,  his  authority  over  it  ceased  at  the  dissolution.  He 
could  not  use  it  for  his  private  benefit,  nor  in  any  mode  incon- 
sistent with  the  closing  of  the  partnership  business  :  Gow,  on  Part. 
253.  If  it  were  not  a  part  of  the  joint  stock,  then  having  parted 
with  his  beneficial  interest,  and  being  a  «niere  trustee,  he  had  no 
right  to  interfere  with  the  property  of  his  cestui  que  trust. 

But  however  true  this  may  be,  it  does  not  follow  that,  because 
John  Y.  Baldwin  may  have  acted  mala  fide,  therefore  Mrs.  John- 
son has  no  rights.  She  comes  before  the  court  claiming  to  be  a 
bona  fide  purchaser  for  a  valuable  consideration,  without  notice  of 
any  fraud  or  improper  conduct  on  the  part  of  John  Y.  Baldwin  ; 
and  claiming  as  she  does  under  the  person  having  the  legal  title  at 
the  time,  she  is  entitled  to  great  consideration. 

The  rule  of  equity  touching  the  rights  of  a  person  claiming 
to  be  a  bona  fide  purchaser  for  a  valuable  consideration,  is  a  very 
strict  one,  perhaps  too  strict ;  but  it  is,  nevertheless,  so  well  set- 
tled, that  it  ought  not  to  be  lightly  disturbed.  And  it  does  ap- 
pear to  me  that  the  claim  of  the  defendant,  Mrs.  Johnson,  to  be 
considered  in  the  light  of  such  purchaser,  cannot  be  sustained, 


454  CASES  IN  CHANCERY. 

Baldwin  v.  Johnson  et  al. 

She  had  no  knowledge  whatever  of  the  pretended  title  of  J.  Y. 
Baldwin.  She  had  understood,  and  therefore  believed,  that  the 
title  was  in  him.  She  placed  implicit  confidence  in  his  state- 
ments. It  does  not  appear  from  her  answer,  that  she  had  ever 
examined  or  seen,  or  even  inquired  for,  the  title  deeds.  If  in- 
quiry had  been  made  for  them  at  the  time  the  mortgage  was  giv- 
en, they  could  not  have  been  produced.  They  were  iu  the  pos- 
session of  a  third  person,  for  the  purpose  of  preparing  a  formal 
transfer  to  Jesse  Baldwin  ;  and  that  fact  could  scarcely  have  been 
concealed.  Every  man  purchases  at  his  peril,  and  is  bound  to 
use  some  reasonable  diligence  in  looking  to  the  title  and  compe- 
tency of  the  seller.  It  will  not  answer  to  rest  upon  mere  reputa- 
tion or  belief,  unless  the  party  intends  to  rely  upon  his  covenants 
alone. 

In  this  case,  too,  John  Y.  Baldwin  was  not  in  possession,  ei- 
ther by  himself  or  his  tenants,  at  the  time  the  mortgage  was 
taken,  nor  had  he  ever  any  separate  and  exclusive  possession. 
David  Ball  says  he  rented  of  John  Y.  Baldwin,  but  that  he  re- 
cognized both  him  ami  Jesse  as  owners  or  landlords,  and  paid  the 
rent  at  the  store.  David  Conger  always  paid  the  rent  to  Jesse 
after  he  returned  from  New- York,  and  always  thought  the  pro- 
perty belonged  to  the  firm.  Such  was  the  common  reputation. 
Mrs.  Williams  rented  of  John  Y.  Baldwin,  who  said  the  property 
was  his  ;  but  Jesse  claimed  the  rent,  and  she  paid  it.  Henry 
Earl  hired  the  house  in  Franklin  street  in  October,  1819:  he 
hired  of  Jesse  Baldwin,  and  knew  no  body  else  in  the  transac- 
tion. These  tenants  were  in  possession  in  February,  1820,  when 
the  mortgage  was  taken,  and  it  is  evident  that  inquiry  from  any 
of  them  would  have  given  sufficient  information  to  put  her  upon 
inquiry.  It  would  have  informed  her  that  if  it  was  not  the  sepa- 
rate property  of  Jesse  Baldwin,  it  was  at  least  the  property  of  the 
firm,  or  claimed  as  such;  and  that  firm  being  dissolved,  John  Y. 
Baldwin  could  not  execute  a  mortgage,  or  give  a  title  for  any 
part  of  the  property.  In  Taylor  v.  Hibbert,  2  Ves.  jr.  440,  Ld. 
Roslyn  says:  "I  have  no  difficulty  to  lay  down,  and  am  well 
warranted  by  authority  and  strongly  founded  in  reason,  that 
whoever  purchases  an  estate  from  the  owner,  knowing  it  to  be  in 
the  possession  of  tenants,  is  bound  to  inquire  into  the  estate  these 


OCTOBER  TERM,  1831.  455 

Baldwin  v.  Johnson  et  al. 

tenants  have."  And  again;  "It  was  sufficient  to  put  the  pur- 
chaser upon  inquiry,  that  he  was  informed  the  estate  was  not  in 
the  actual  possession  of  the  person  with  whom  he  contracted  ; 
that  he  could  not  transfer  the  ownership  and  possession  at  the 
same  time;  that  there  were  interests,  as  to  the  extent  and  terms 
of  which  it  was  his  duty  to  inquire."  In  Hiern  v.  Mill,  13  Ves. 
120,  the  principle  is  expressly  recognized.  See  also  Daniels  v. 
Davison,  16  Ves.  254;  Allen  v.  Anthony,  1  Meriv.  282; 
1  John.  C.  R.  299.  I  am  aware  that  these  authorities  extend 
only  to  cases  in  which  the  rights  of  the  tenants  are  concerned. 
But  there  is  no  difference  in  principle  or  in  reason.  The  object 
of  the  inquiry  would  be  to  ascertain  the  nature  and  extent  of  their 
possession  and  rights;  and. the  notice  would  be  equally  good 
whether  they  informed  the  purchaser  of  a  holding  under  the  ven- 
dor or  some  other  person,  or  whether  of  a  leasehold  or  a  free- 
hold interest.  In  the  case  of  Daniels  v.  Davison,  cited  before, 
the  person  in  possession  had  been  a  tenant  of  the  vendor,  but  at 
the  time  of  the  sale  and  purchase  claimed  to  hold  the  property 
under  an  article  of  agreement  to  purchase  of  the  vendor.  The 
court  held,  that  "being  in  possession  under  a  lease,  with  an 
agreement  in  his  pocket  to  become  the  purchaser,  gave  him  an 
equity,  sufficient  to  repel  the  claim  of  a  subsequent  purchaser 
who  made  no  inquiry  as  to  the  nature  of  his  possession."  That 
was,  as  I  conceive,  a  stronger  case  thaifr  the  present.  There  it 
was  admitted  the  person  in  possession  was  in  under  the  lease,  and 
it  was  argued  that  the  most  the  purchaser  was  bound  to  take  notice 
of  was  some  leasehold  interest;  but  the  court  held,  that  if  his  title 
was  goo.d  as  against  the  purchaser  under  a  lease  for  forty-five  years, 
it  would  be  good  for  a  greater  interest. 

I  think  there  is  weight  in  the  position  advanced  by  the  coun- 
sel of  the  complainant,  that  Mrs.  Johnson  cannot  claim  the  pro- 
tection of  a  bona  fide  purchaser,  because  here  there  was  no  mo- 
ney paid;  that  this  was  a  mere  collateral  security;  that  the  old 
notes  were  not  given  up,  and  consequently  that  the  party,  in  the 
language  of  the  books,  is  not  hurt.  The  rule  undoubtedly  is, 
that  the  person  claiming  such,  protection  must  have  paid  the  pur- 
chase money;  to  have  secured  it,  will  not  answer.  The  court 
gives  protection  in  the  peculiar  case,  on  the  ground  that  it  is  ab- 


456  CASES  IN  CHANCERY. 

Baldwin  v.  Johnson  et  al. 

Bolutely  necessary;  that  without  it,  the  money  must  inevitably  be 
lost :  Wallwyn  v.  Lee,  9  Ves.  jr.  32 ;  Harrison  v.  Heathcote,  1  Atk. 
538  ;  3  Atk.  304,  Hardingham  v.  Nioholls ;  Maitland  v.  Wilson,  3 
^4<A;.  814;  Beekman  v.  jFVosi,  18  «7o/m.  jR.  562.  I  have  doubts 
whether  this  case  could  be  considered  within  the  rule,  but  I  do  not 
find  it  necessary  to  decide  the  question. 

The  result  of  ray  judgment  on  this  part  of  the  case  is,  that 
this  mortgage  cannot  be  sustained  as  against  Jesse  Baldwin. 
John  Y.  Baldwin  made  the  conveyance  without  a  particle  of  au- 
thority, and  in  fraud  of  the  rights  of  the  complainant;  and  Mrs. 
Johnson  received  the  mortgage  without  any  investigation,  relying 
entirely  upon  the  integrity  of  the  mortgagor,  when  the  slightest 
inquiry  would  have  sufficed  to  satisfy  her  that  he  had  no  right 
whatever  to  meddle  with  the  property.  I  regret  this  conclusion, 
seeing  that  the  defendant,  Mrs.  Johnson,  is  a  female,  and  proba- 
bly unacquainted  with  business;  but  I  am  not  able  to  bend  the 
rule  to  meet  her  particular  situation.  I  am  induced  to  believe 
that  she  has  acted  honestly  in  the  whole  matter,  notwithstanding 
a  number  of  circumstances  calculated  to  excite  suspicion,  and  cer- 
tainly showing  very  great  incaution.  The  facts,  that  in  1819 
this  partnership  note  was  renewed  without  any  notice  to  Jesse 
Baldwin ;  that  in  the  same  year  she  took  a  conveyance  from 
John  Y.  Baldwin  of  the  Caldwell  property  for  a  trifling  conside- 
ration, part  of  which  was  to  pay  the  interest  due  on  the  note; 
that  soon  after,  when  in  consequence  of  difficulties  between  the 
partners  she  applied  to  John  for  further  security,  and  took  his 
individual  property  to  secure  the  partnership  debt,  after  the  disso- 
lution, and  without  having  the  mortgage  registered  ;  and  that  of 
all  these  matters  Jesse  Baldwin,  though  a  near  neighbor  and 
responsible  man  had  no  kind  of  notice ;  would  naturally  lead  to 
a  suspicion  that  there  was  a  studied  effort  to  conceal  them  from 
him,  unless  their  disclosure  should  become  actually  necessary.  If 
this  were  the  honest  debt  of  the  company,  there  could  be  no  possi- 
ble motive  for  concealment.  But  as  the  defendant  has  positively 
denied  any  intentional  misconduct,  I  am  not  at  liberty  to  disbe- 
lieve her,  and  therefore  regret  the  necessity  that  impels  me  to  take 
from  her  the  security  on  which  she  rested. 

It  was  insisted  by  the  defendant's  counsel,  that  if  the  mortgage 


OCTOBER  TERM,  1831.  457 

Baldwin  v.  Johnson  et  al. 

should  not  be  good  as  against  Jesse,  in  should  be  available  in 
equity  against  the  moiety  of  the  property,  the  legal  title  of  which 
was  in  John  at  the  time  the  mortgage  was  given.  This  I  think 
«annot  be,  without  unsettling  the  principles  already  established. 
3he  had  notice,  or  might  have  had  notice,  that  this  was,  or  had 
been  partnership  property;  and  the  partnership  being  dissolved, 
that  John  Y.  Baldwin  had  no  right  to  make  such  conveyance.  Or 
if  it  should  be  contended,  that  this  being  real  property,  the  parties, 
on  the  dissolution,  held  it  as  tenants  in  common,  then  she  had 
notice,  or  might  have  had  notice,  that  the  beneficial  right  and  in- 
terest of  John  Y.  Baldwin  was  vested  in  Jesse,  and  of  course  that 
a  mortgage  would  be  of  no  avail.  At  the  time  of  executing  the 
mortgage,  John  had  no  interest  to  bind  or  to  convey,  and  the  mort- 
gagee can  take  nothing  under  it. 

It  was  also  contended,  that  the  original  notes  were  given  for 
money  advanced  to  the  firm,  and  that  the  court  ought  to  hold  this 
property  liable  for  the  payment  of  the  debt,  before  the  mortgage  is 
delivered  up.  I  am  not  disposed  to  question  the  original  debt,  or 
the  liability  of  the  firm  to  pay  it.  They  are  matters  with  which, 
as  it  appears  to  me,  I  have  no  concern  ;  and  hence  I  shall  not 
grant  that  part  of  the  complainant's  prayer  which  seeks  to  have 
the  notes  cancelled.  But  I  do  not  see  the  way  clear  in  ordering 
the  notes  to  be  paid  out  of  this  particular  fund.  The  whole 
property  of  the  partners  is  liable  for  the  .payment  of  the  partner- 
ship debts.  If  all  can  be  paid,  it  is  well.  If  not,  they  must  be 
paid  pro  rata ;  or  at  all  events,  this  court  cannot  establish  a  prefer- 
ence, the  only  foundation  for  which  would  be  an  unauthorized  and 
fraudulent  act  of  a  partner  after  dissolution. 

I  have  examined  the  pleadings  carefully,  to  ascertain  how  far 
the  court  would  be  authorized  to  make  any  order  to  give  any  direc- 
tion in  relation  to  the  payment  of  the  notes,  and  it  appears  to  me 
that  that  matter  is  not  within  the  case.  The  bill  pra^s  relief 
against  the  mortgage;  and  although  it  prays  that  the  notes  may 
be  given  up  to  be  cancelled,  yet  that  seems  to  be  on  the  ground 
that  they  are  merely  colorable,  and  therefore  no  foundation  for  the 
mortgage,  and  that  to  effect  the  complainant's  object,  (the  avoidance 
of  the  mortgage,)  it  might  be  necessary  to  go  into  the  consideration 
of  the  notes. 


458  CASES  IN  CHANCERY. 

Crawford  et  at.  v.  Bertholf  et  al. 

The  decree  of  the  court  is,  that  the  mortgage  be  delivered  up  to 
be  cancelled,  and  that  the  defendant  be  perpetually  restrained  from 
all  further  proceedings  on  the  execution. 

Not  being  satisfied  that  there  is  any  fraud  in  this  case  on  the 
part  of  Mrs.  Johnson,  I  shall  not  order  costs  as  against  her. 

i 

CITED  in  Linford  v.  Linford,  4  Dutcher  116;  Long  v.  Simpson,  3  Stockt.  250; 

Jjeveney  v.  Makoney,  8  C.  E.  G-r.  249. 


JOHN  CRAWFORD  AND  RICHARD  S.  HART3HORNE  v.  JOHN  G. 
BEKTHOLK,  JOSEPH  PARKER,  WILLIAM  PARKER  AND  JO- 
SEPH H.  VAN  MATER. 


The  practice  of  examining  witnesses  a  second  time,  on  the  same  matter,  disap- 
proved. 

The  execution  and  acknowledgment  of  a  deed  of  conveyance,  is  not  sufficient ;  it 
must  be  delivered  to  the  purchaser,  actually  or  in  contemplation  of  law,  to 
pass  the  title. 

It  is  not  necessary  that  there  should  be  an  actual  handing  over  of  the  instrument, 
to  constitute  a  delivery;  a  deed  may  be  delivered  by  words  without  acts,  by 
acts  without  words,  or  by  both  words  and  acts. 

A  deed  may  be  effectual  to  pass  real  estate,  though  it  be  left  in  the  custody  of  the 
grantor.  If  both  parties  be  present,  and  the  contract  is  to  all  appearance 
consummated,  without  any  condition  or  qualification  annexed,  it  i»a  complete 
and  valid  deed,  notwithstanding  it  be  left  in  the  custody  of  the  grantor. 

It  is  necessary,  however,  that  there  should  be  some  act  evincing  the  intent;  it 
must  satisfactorily  appear,  if  not  from  acts  or  express  words,  yet  from  cir- 
cumstances at  least,  that  there  was  intention  to  part  with  the  deed,  and  of 
course  to  pass  the  title. 

Where  the  evidence  opposes  the  idea  that  there  was  a  delivery,  and  proves,  that 
although  there  might  have  been  an  intention  to  deliver,  founded  on  the  pre- 
sumption that  the  contract  was  about  to  be  consummated  ;  yet  that  such  in- 
tention was  abandoned,  and  it  was  distinctly  stated  that  the  deed  could  not  or 
would  not  be  delivered  at  that  time ;  it  cannot  be  considered  a  delivery. 

William  Parker,  the  elder,  by  his  will  devised  a  farm  to  his  son  Joseph  Parker; 
and  directed,  that  if  the  property  appropriated  for  that  purpose  should 
not  be  enough  to  pay  his  debts,  his  sons,  Joseph  Parker  and  William  Par- 
ker, should  pay  the  remainder.  Joseph  Parker,  being  in  possession  of  the 
place  devised  to  him,  offered  it  for  sale  at  public  auction,  and  agreed  to  take 
in  payment  any  lawful  claims  against  the  estate  of  his  father.  William  L. 
Lloyd  became  the  purchaser.  He  then  proposed  to  borrow  of  John  Craw- 
ford a  sealed  bill  given  him  by  the  testator  for  one  thousand  eight  hundred 


OCTOBER  TERM,  1831.  459 


Crawford  et  al.  v.  Bertholf  et  al. 


dollars,  on  which  about  two  thousand  dollars  was  due:  and  pay  it  to  Joseph 
Parker  in  part  of  the  purchase;  and  in  lieu  of  ii,  to  give  J.  Crawford  a 
mortgage  on  the  property;  to  which  all  parties  agreed;  and  W.  Lloyd  waa 
let  into  possession.  The  parties  afterwards  met  to  complete  the  purchase  ; 
when  it  was  proposed  by  Lloyd,  and  agreed  to  by  Parker,  that  beside  the 
said  sealed  bill  to  Crawford,  Parker  should  take  two  bonds  given  to  Thomas 
Lloyd,  and  a  sealed  bill  given  to  the  executors  of  Thomas  Lloyd,  in  part 
payment,  and  for  the  balance  of  the  purchase  money  take  the  note  of  W. 
Lloyd,  with  J.  H.  Van  Mater  as  security ;  and  that  on  receiving  these  the 
deed  should  be  delivered.  Parker  executed  and  acknowledged  a  deed  to 
Lloyd  for  the  premises,  and  it  was  laid  on  the  table.  Lloyd  executed  and 
delivered  a  bond  and  mortgage  to  Crawford  for  two  thousand  dollars,  which 
was  afterwards  recorded.  Crawford  delivered  his  sealed  bill  to  Lloyd,  who 
gave  it  to  Parker  in  part  payment,  together  with  the  two  bonds  to  T.  Lloyd 
and  sealed  bill  to  the  executors  of  T.  Lloyd,  as  claims  against  the  testator's 
estate.  The  interest  was  cast  on  them,  they  were  taken  into  possession  by 
.  Parker;  he  tore  the  seals  from  two  of  the  instruments,  and  Lloyd  tore  the 
seal  from  a  third  ;  the  seals  were  torn  from  the  sealed  bill  of  Crawford's 
and  two  of  the  bonds.  Lloyd  then  signed  the  note  to  Parker  for  the  balance 
of  the  purchase  money,  which  was  to  be  signed  by  J.  II.  Van  Mater  at  a 
future  day.  Lloyd  then  said,  this  (the  deed)  I  suppose  belongs  to  me,  and 
the  scrivener  was  about  to  hand  it  to  him  ;  but  Parker  said,  no,  you  cannot 
have  it  until  the  conditions  are  fully  complied  with.  It  was  then  agreed  that 
the  deed  should  be  delivered  the  next  second-day,  when  the  note  and  secur- 
ity was  to  be  given.  Lloyd  went  away  and  left  the  deed,  which  was  handed 
back  to  Parker.  Under  these  circumstances,  the  deed  cannot  be  considered 
as  delivered. 

•« 

Before  the  business  at  this  meeting  was  closed,  Parker  began  to  suspect  that  some 
of  the  bonds  he  had  received  were  not  genuine ;  and  after  Lloyd  went 
away,  mentioned  his  suspicions  to  Dr  Ten  Brfteck,  who  was  present.  Some 
days  afterwards  Lloyd  called  on  Parker;  said  he  had  Van  Mater's  security 
to  the  note,  and  wanted  the  deed.  Parker,  then,  being  satisfied  that  two  of 
the  bonds  he  had  received  were  not  genuine,  said  he  would  not  accept  the 
note  till  the  bonds  were  made  good  ;  and  refused  to  deliver  the  deed.  He 
offered  to  return  the  bills  and  bonds  he  had  received  to  Lloyd,  who  refused 
to  take  them.  Parker  then  brought  an  ejectment  for  the  land,  and  Lloyd 
filed  a  bill  for  specific  performance  of  the  contract,  and  obtained  an  injunc- 
tion to  stay  proceedings  in  the  ejectment.  An  issue  was  awarded  to  try  the 
genuineness  of  the  bonds,  two  of  which  were  found  to  be  spurious :  where- 
upon the  injunction  was  dissolved  and  the  bill  dismissed,  and  Parker  recov- 
ered possession  of  the  land.  After  the  termination  of  this  suit,  the  estate  of 
William  Parker,  the  testator,  proving  to  be  insolvent ;  his  executors,  under 
jiu  order  of  the  orphan's  court  of  the  county  of  Monmouth,  sold  and  con- 
veyed the  farm  to  J.  G.  Bertholf,  for  three  thousand  two  hundred  and  se- 
venty-five dollars  and  eighty-six  cents  ;  after  which  the  interest  of  W.  Lloyd 
in  the  premises  was  sold,  under  an  execution  against  him,  by  the  sheriff,  to 
J.  H.  Van  Mater,  for  fourteen  dollars  and  twenty-seven  cents.  J.  Crawford 
assigned  his  bond  and  mortgage  to  Richard  S.  Hartshorne,  (the  sealed  bill 
being  still  unpaid,)  upon  which  the  complainants,  Crawford  and  Hartshorne, 


460  CASES  IN  CHANCERY. 

Crawford  et  al.  v.  Bertholf  et  al. 

filed  the  present  bill ;  praying  that  the  mortgage  may  be  decreed  to  be  a  lien 
on  the  premises,  or  that  the  complainants  may  be  decreed  to  have  an  equita- 
ble lien  on  the  property,  for  the  amount  of  the  sealed  bill  or  mortgage;  and 
that  an  account  be  taken,  and  the  executors  of  W.  Parker  decreed  to  pay  it. 
Held  that  the  complainants  have  shown  no  sufficient  ground  of  equity  to  en- 
title them  to  relief. 

When  the  contract  is  made  for  the  sale  of  an  estate,  equity  considers  the  vendor 
as  a  trustee  for  the  purchaser,  of  the  estate  sold  ;  and  the  purchaser  as  trustee 
of  the  purchase  money,  for  the  vendor. 

As  a  consequence  of  this  rule,  the  purchaser  may  sell  or  charge  the  estate,  before 
the  conveyance  is  executed.  He  may  come  into  this  court,  claiming  a  spe- 
cific performance  of.the  contract,  and  compel  the  execution  of  the  title. 

If  he  has  paid  any  part  of  the  purchase  money,  he  will  be  considered  as  having  a 
lien  on  the  property  for  the  amount  thus  paid  ;  and  a  court  of  equity  will  not 
compel  him  to  Render  up  possession,  until  he  shall  have  been  repaid. 

But  all  this  proceeds  on  the  principle  of  honesty  and  good  faith  between  the 
parties;  without  this,  equity  will  not  interfere.  If  there  be  fraud  in  the 
transaction,  equity  will  not  yield  its  aid  to  the  wrong  doer;  but  will  leave 
him  to  his  legal  remedy. 

It  is  a  sound  maxim,  that  "  he  who  commits  inequity  shall  not  have  equity." — 
In  this  case  this  maxim  will  apply.  W.  L.  Lloyd  had  no  equity.  He 
had  paid  part  of  the  purchase  money  in  available  securities;  the  other  secu- 
rities offered  were  not  genuine.  He  attempted  fraudulently  to  impose  on  the 
vendor,  and  was  considered  as  entitled  to  no  equitable  relief.  He  could  not 
obtain  a  decree  for  specific  performance;  but  on  the  ground  of  fraud,  his  bill 
was  dismissed. 

Under  these  circumstnnce«,  Lloyd,  personally,  had  had  no  lien  upon  the  property 
for  the  money  he  had  paid.  He  was  entitled  to  a  return  of  the  money  (or 
securities)  paid,  or  to  recover  it  back  of  the  vendor,  but  nothing  more. 

Such  being  the  case,  Lloyd  had  no  equitable  right  that  he  could  convey  to  Craw- 
ford ;  and  Crawford,  considered  simply  as  a  purchaser  under  Lloyd,  can  have 
no  rights  as  against  the  defendants. 

This  is  not  the  case  of  notice.  When  one  affected  with  notice  conveys  to  one 
without  notice,  the  assignee,  in  case  he  has  the  legal  estate,  shall  be  pro- 
tected. Here  the  assignee  has  not  the  legal  estate.  His  assignor  was  not 
affected  with  notice  of  any  incumbrance  or  claim,  but  was  guilty  of  fraud  ; 
and  the  assignee  is  seeking  protection,  not  against  the  incumbrancer,  but 
against  the  owner  of  the  legal  estate. 

It  is  a  general  rule  in  equity,  that  when  a  person  having  rights,  and  knowing 
those  rights,  sees  another  person  take  a  mortgage  upon  property,  without  dis- 
closing his  title,  he  shall  not  be  allowed  afterwards  to  set  up  his  title  to  de- 
feat the  mortgage.  The  same  principle  applies  to  other  transactions. 

The  cases  under  this  head  of  equity,  all  go  on  the  ground  of  misrepresentation 
or  fraudulent  concealment,  whereby  an  innocent  person  is  induced  to  do  what 
he  otherwise  would  not  do. 

In  this  case,  there  was  no  misrepresentation  on  the  part  of  Parker.  As  to  con- 
cealment, his  not  communicating  to  Crawford,  at  the  time,  his  suspicions  of 


OCTOBER  TERM,  1831.  461 

Crawford  et  al.  v.  Bertbolf  et  al. 

the  genuineness  of  the  bonds,  when  they  were  mere  suspicions,  and  he  had 
no  personal  knowledge  of  the  fact ;  does  not  render  him  liable  to  the  impu- 
tation of  fraud. 

A  party,  to  be  charged  on  the  ground  of  concealment,  should  be  aware  of  his 
rights.  Fraud  implies  knowledge:  if  there  was  a  mistake,  thia  court  will  not 
consider  it  fraud. 

Nor  was  Parker  guilty  of  fraud  in  not  returning  the  sealed  bill  to  Crawford:  he 
did  not  deal  with  him.  The  bill  came  not  from  Crawford,  but  from  Lloyd  to 
Parker.  It  belonged  to  Lloyd :  he  had  purchased  it.  When  he  failed  to 
comply,  he  was  entitled  to  receive  back  what  he  had  paid  :  it  was  offered  to 
him,  and  he  refused  it. 

If  Crawford  had  taken  any  pains,  he  might  have  recovered  the  possession  of  his 
bill,  and  been  in  as  good  a  situation  as  when  he  passed  it  to  Lloyd.  The 
mutilation  of  the  bill,  by  tearing  off  the  seals,  could  not  have  affected  the 
validity  of  the  bill,  or  impaired  his  rights. 

That  the  estate  to  which  he  must  look  for  payment,  has  since  become  wasted,  in 
consequence  of  which  the  complainants  may  suffer  loss,  does  not  alter  the 
principle ;  nor  can  it,  in  this  case,  furnish  a  substantive  ground  of  relief. 


William  Parker,  late  of  Mon mouth,  by  his  last  will  and  testa- 
ment, dated  May  28,  1812,  ordered  his  executors  to  pay  all  his 
debts  and  legacies  out  of  his  movable  estate,  and  the  lands  which  he 
should  in  his  said  will  order  to  be  sold.  He  gave  to  his  son,  Jo- 
seph Parker,  a  property  known  by  the  name  of  the  Potter  place ; 
and  directed,  that  if  there  should  not  be  enough  to  pay  the  debts 
in  the  property  appropriated  for  that  purpose,  his  two  sous,  Joseph 
and  William,  should  pay  the  remainder.  The  testator  died  in  1815, 
and  the  will  was  proved  by  both  executors*  In  1816,  Joseph  Par- 
ker being  in  possession  of  the  Potter  place,  so  devised  to  him,  ad- 
vertised it  for  sale  at  public  auction.  At  the  sale  it  was  struck  off 
to  William  L.  Lloyd,  he  being  the  highest  bidder. 

The  bill  then  charges,  that  the  testator  in  his  life  time  was 
indebted  to  John  Crawford,  one  of  the  complainants,  in  and  by 
a  certain  single  bill,  dated  1st  April,  1812,  in  the  sum  of  two 
thousand  dollars  or  upwards.  This  bill  Lloyd  proposed  to  bor- 
row of  Crawford  and  pay  to  Parker,  in  part  payment  of  the  land, 
and  give  to  Crawford,  in  lieu  of  it,  a  bond  and  mortgage  on  the 
property  so  purchased.  The  arrangement  was  agreed  to  by  all 
parties,  and  they  met  on  the  17th  December,  1817,  to  complete 
the  purchase  and  sale.  It  was  then  agreed  that  Parker  should 
take,  in  part  payment  of  the  purchase  money,  the  single  bill 
aforementioned ;  also  two  bonds  purporting  to  have  been  given  by 


462  CASES  IN  CHANCERY. 

Crawford  et  al.  v.  Bertholf  et  al. 

William  Parker  to  one  Thomas  Lloyd,  deceased,  and  one  bill  given 
by  said  William  Parker  to  the  executors  of  Thomas  Lloyd ;  and 
that  for  the  balance,  Joseph  Parker  should  take  the  note  of  Wil- 
liam L.  Lloyd,  the  purchaser,  with  Joseph  H.  Van  Mater  as  his 
surety  ;  and  that  on  receiving  the  said  securities,  a  deed  should  be 
delivered  to  the  purchaser. 

The  bill  further  charges,  that  the  purchaser,  William  L.  Lloyd, 
was  let  into  possession  on  the  1st  of  April,  1817,  and  continued 
in  on  the  17th  December,  1817,  when  the  parties  met  to  complete 
the  purchase.  That  at  this  meeting  John  Crawford  attended,  for 
the  purpose  of  delivering  over  the  said  single  bill,  and  receiving 
his  bond  and  mortgage  from  William  L.  Lloyd.  That  Joseph 
Parker  was  there,  attended  by  Dr.  Samuel  W.  Ten  Broeck,  the 
agent  of  the  executors  of  William  Parker,  deceased  ;  and  then 
produced  a  deed  from  himself  and  wife  to  the  said  William  L. 
Lloyd  for  the  property,  bearing  dace  the  1st  of  April,  1817,  duly 
executed  and  acknowledged.  That  at  the  same  time  Dr.  Saml. 
W.  Ten  Broeck,  the  aforesaid  agent,  produced  a  deed  of  mort- 
gage prepared  by  himself,  from  the  said  William  L.  Lloyd  to  the 
said  John  Crawford,  dated  Deceneber  16,  1817.  That  at  this 
meeting  the  notes,  bills  and  obligations-  agreed  by  Joseph  Parker 
to  be  received  in  part  payment  were  produced,  and  the  amount 
of  them  deducted  from  the  purchase  money;  and  a  note  was 
thereupon  drawn  for  the  balance,  to  be  signed  by  the  said  Wil- 
liam L.  Lloyd  at  that  time,  and  by  Joseph  H.  Van  Mater  at  a 
future  day.  That  thereupon  the  said  notes,  bills  or  obligations 
were  delivered  up  to  the  said  Joseph  Parker,  or  his  agent,  and  the 
seals  of  two  of  them  torn  off  by  the  said  Joseph  Parker,  and  of 
another  one  by  the  said  William  L.  Lloyd.  That  William  L. 
Lloyd,  then  signed  the  note  for  the  balance,  and  Joseph  Parker 
delivered  to  him  the  deed,  which  he  accepted  and  took  into  his 
possession  ;  and  having  it  in  his  possession,  he,  in  the  presence 
of  Parker,  executed  to  John  Crawford  a  bond  a  ad  mortgage  for 
the  amount  of  the  note  or  single  bill  delivered  to  him  by  Craw- 
ford, and  which  he  had  delivered  to  Joseph  Parker.  That  this 
mortgage  was  afterwards  registered,  on  the  28th  January,  1818, 
in  the  cltrk's  office  in  Freehold,  in  the  county  of  Monmouth. 
The  bill  then  charges  that  Joseph  Parker,  and  Ten  Broeck,  the 


OCTOBER  TERM,  1831.  463 


Crawford  et  al.  v.  Bertholf  et  al. 


agent,  were  both  present  when  Crawford  loaned  and  delivered 
the  single  bill  to  Lloyd,  and  saw  and  knew  that  Crawford  ac- 
cepted in  lieu  thereof  the  bond  and  mortgage  from  Lloyd,  with- 
out making  any  claim  or  giving  any  warning  whatever.  That 
the  said  single  bill  was  accepted  by  the  said  Joseph  Parker  as  one 
of  the  debts  to  be  paid  out  of  the  Potter  place,  and  was  a  lien  on 
it,  and  has  always  since  been  retained  by  said  Parker,  and  has 
been  cancelled  or  otherwise  held  as  a  voucher  and  never  returned 
or  delivered  either  to  Lloyd  or  Crawford.  That  afterwards,  either 
because  the  note  for  the  balance  aforesaid  was  not  executed,  or 
because  some  suspicion  arose  as  to  the  genuineness  of  some  of 
the  obligations  that  had  been  delivered  by  Lloyd  to  Parker,  the 
deed  came  again  into  the  possession  of  Joseph  Parker,  who  after- 
wards refused  to  deliver  the  same,  but  brought  an  action  of  eject- 
ment for  the  said  premises.  That  upon  this,  Lloyd  filed  a  bill  in 
this  court  for  the  purpose  of  obtaining  the  deed  and  for  a  specific 
performance  of  the  contract,  and  also  for  an  injunction;  which 
bill  was  afterwards  dismissed  with  costs.  The  bill  further  charges, 
that  during  the  pendency  of  this  suit,  the  executors  and  their 
agent  frequently  promised  the  complainant,  Crawford,  that  if  he 
would  not  interfere  in  the  suit  by  becoming  a  party  thereto,  or  in- 
stituting proceedings  on  his  mortgage,  that  it  should  be  consider- 
ed a  lien  on  the  premises,  and  fully  satisfied.  That  after  the  ter- 
mination of  the  suit,  and  under  pretence* of  some  rule  or  order 
of  the  orphans'  court  of  the  county  of  Monrnouth,  the  executors 
sold  the  mortgaged  premises  to  John  G.  Bertholf  for  three  thou- 
sand two  hundred  and  seventy-five  dollars  and  eighty-six  cents, 
and  made  him  a  deed  therefor,  which  has  since  been  duly  record- 
ed. That  at  the  sale  Crawford  caused  notice  to  be  given  of  his 
mortgage;  and  it  is  expressly  charged,  that  Bertholf  had  full  no- 
tice, both  in  fact  and  in  law,  before  the  purchase. 

The  bill  further  charges  that  the  same  premises,  or  the  interest 
of  William  L.  Lloyd  therein,  was  subsequently  sold  by  the  sheriff", 
under  an  execution  against  Lloyd,  and  purchased  by  Joseph  H. 
Van  Mater,  for  fourteen  dollars  and  thirty-seven  cents,  and  that 
the  sheriff  made  a  deed  to  him  accordingly;  and  that  on  the  13th 
September,  1825,  Crawford  assigned  the  bond  and  mortgage  to 


464  CASES  IN  CHANCERY. 

Crawford  et  al.  v.  Bertholf  et  al. 

Richard  S.  Hartshorne ;  that  the  bill  is  still  unpaid,  and  the  estate 
of  William  Parker  insolvent. 

Under  these  circumstances,  the  complainants  pray  that  the 
mortgage  may  be  decreed  to  be  a  lien  on  the  premises  ;  or  that 
the  complainants,  if  more  equitable,  may  be  decreed  to  have  an 
equitable  lien  on  the  property  for  the  amount  of  the  note  or  the 
mortgage ;  and  that  an  account  be  taken,  and  the  said  executors 
be  decreed  to  pay  it,  and  in  default  thereof  that  the  property  be 
sold,  &c. 

The  answer  of  Joseph  Parker  admits  the  will  and  the  sale,  as 
set  out  in  the  bill ;  and  says  that  in  April,  1817,  he  was  ready  to 
deliver  a  deed  to  the  purchaser,  Lloyd,  and  so  informed  him,  and 
showed  him  the  deed,  and  requested  him  to  make  the  first  pay- 
ment; but  he  was  not  prepared  to  do  it.  That  on  the  16th  De- 
cember, 1817,  William  L.  Lloyd  called  on  him,  and  proposed  to 
deliver  to  him,  in  part  payment  of  the  purchase  money,  the  notes, 
bills  and  bonds  before  mentioned  ;  and  proposed  further  to  give  to 
him,  for  the  balance,  his  own  note  with  Joseph  H.  Van  Mater  as 
his  security.  That  the  defendant,  presuming  the  instruments 
thus  oifered  to  be  genuine,  was  disposed  to  accept  of  the  offer,  and 
tore  off  the  seals  from  two  of  the  said  bonds  ;  but  before  the  busi- 
ness was  completed  he  began  to  suspect  the  genuineness  of  two  of 
the  bonds,  though  he  believed  the  sealed  bill  given  to  Crawford  to 
be  genuine.  From  delicacy  to  the  feelings  of  Lloyd  he  did  not 
communicate  his  suspicions  at  that  time,  but  when  Lloyd  left  the 
room  he  mentioned  his  suspicions  to  Dr.  Ten  Broeck.  That  he 
kept  the  bonds  for  several  days  for  the  purpose  of  having  them 
examined,  and  being  confirmed  in  his  suspicions  he  tendered 
them,  and  also  the  bill  of  Crawford,  to  Lloyd,  who  refused  to  re- 
ceive them.  He  denies  that  he  ever  delivered  the  deed  to  Lloyd  ; 
but  alleges  that  the  arrangement  was  never  completed,  and  that 
Lloyd  was  never  entitled  to  a  delivery  of  the  deed  ;  that  he  nev- 
er gave  his  bond,  with  Van  Mater  his  surety,  for  the  balance.  He 
admits  that  Lloyd  was  let  into  possession  in  the  spring  of  1817, 
under  the  impression  that  he  would  honestly  comply  with 
the  terms  of  the  purchase ;  and  that  he  was  willing  to  take  in 
payment  any  genuine  claims  that  Lloyd  could  produce  against 
the  estate  of  William  Parker,  deceased ;  but  considering  that  it 


OCTOBER  TERM,  1831.  4G5 

Crawford  et  al.  v.  Bertholf  et  al. 

was  attempted  to  practice  a  fraud  upon  him,  he  felt  justified  in 
refusing  to  deliver  the  deed.  He  denies  that  he  accepted  the 
sealed  bills  or  delivered  the  deed,  and  alleges  that  before  such 
acceptance  and  delivery,  suspicions  arose  as  to  the  genuineness 
of  some  of  them,  which  led  to  an  adjournment;  and  he  denies 
cancelling  the  sealed  bill  of  the  complainant.  He  admits  that 
after  tendering  the  bills,  he  brought  an  ejectment  to  recover  pos- 
session of  the  premises;  and  that  a  bill  was  thereupon  filed  in 
this  court  by  William  L.  Lloyd,  as  above  stated  :  that  after  an- 
swer put  in,  a  feigned  issue  was  awarded  to  ascertain  tfie  genu- 
ineness of  the  two  suspected  bills ;  and  that  on  the  trial  of  ths 
issue  they  were  found  to  be  spurious;  upon  which  the  bill  was 
dismissed,  and  the  possession  of  the  property  decreed  to  the  de- 
fendant. He  admits,  further,  that  the  debt  of  Crawford  against 
the  estate  is  a  just  debt,  and  that  they  had  always  been  willing 

to  allow  it  in  a  course  of  administration.     He  denies  that  he  or 

• 

his  co-executor  ever  promised  Crawford,  that  if  he  would  not 
interfere  in  the  suit  with  Lloyd,  that  his  mortgage  should  be  paid, 
or  considered  a  lien  on  the  property.  He  admits  the  estate  of  his 
testator  to  be  insolvent. 

The  defendant  Bertholf,  the  last  purchaser,  admits  the  pui> 
chase,  and  denies  that  Crawford,  or  any  person  in  his  behalf, 
gave  him  notice  of  his  mortgage  at  the  sale,  or  at  any  time  before 
the  payment  of  the  purchase  money  ;  and  that  he  purchased  and 
paid  the  money  without  any  kind  of  notice  of  such  claim. 

They  admit  the  judgment  and  sale  to  Joseph  H.  Van  Mater; 
and  also  that  the  charge  of  the  assignment  of  the  bond  and  mort- 
gage to  Hartshorne  may  be  true ;  but  insist  that  if  true,  it  was  not 
bona  fide,  but  made  to  give  to  the  claim  the  appearance  of  being 
brought  forward  by  an  innocent  assignee. 

Testimony  was  taken  on  both  sides:  it  is  noticed  in  detail,  as  it 
applies  to  the  several  points  considered,  in  the  opinion  of  the  court. 
The  case  was  argued  by 

G.  D.  Wall,  for  complainants ; 

Gr.  Wood,  for  defendants. 

2a 


466  CASES  IN  CHANCERY. 

Crawford  et  al.  v.  Bertholf  et  al. 

Cases  cited:—!  W.  Blac.  R.  150;  3  Poiv.  M.  1062;  1  Mail 
209 ;  2  Pow.  M.  427 ;  5  John.  C.  272 ;  Rev.  L.  435 ;  7  Pick.  It. 
91 ;  18  Ves.  515  ;  18  John.  544  ;  2  Ball  and  B.  75,  303 ;  1  Scho. 
and  L.  90,  103  ;  1  John.  G.  566,  574  ;  6  Hoist.  K  610  ;  case  of 
J5.  Hopkins,  in  this  court. 

THE  CHANCELLOR.  The  first  ground  taken  by  the  complain- 
ants, is,  that  the  mortgage  given  by  Lloyd  to  Crawford,  and  by 
Crawford  assigned  to  Hartshorne,  is  a  legal  and  subsisting  mort- 
gage; and  therefore  that  Hartshorue  is  entitled  to  relief,  simply  as 
a  mortgagee. 

Whether  the  mortgage  be  a  legal  mortgage  or  not  must  de- 
pend, in  a  great  measure,  on  the  correct  solution  of  the  question, 
whether  the  deed  was  delivered  in  contemplation  of  law?  If  the 
deed  was  actually  delivered  to  the  purchaser,  the  title  passed  with 
it,  and  the  mortgage  would  be  good,  unless  taken  out  of  the 
general  rule  by  some  special  circumstances.  The  delivery  of  the 
deed  is  expressly  alleged  in  the  bill,  and  as  expressly  denied  in 
the  answer ;  and  the  answer  must  be  taken  as  true,  unless  over- 
come by  the  evidence.  Several  witnesses  have  been  examined 
to  this  point  on  the  part  of  the  complainant,  but  they  have  alto- 
gether failed  -to  establish  it.  Joseph  Parker,  jun.  says  there  was 
no  delivery  of  the  deed  ;  that  it  was  agreed  between  the  parties 
that  the  deed  was  to  be  delivered  on  the  next  second-day,  when 
the  note  and  security  was  to  be  given  ;  that  the  deed  laid  on  the 
table,  and  W.  L.  Lloyd  said,  I  suppose  this  belongs  to  me :  Dr. 
Ten  Broeck  and  Joseph  Parker  said  no,  you  cannot  have  it  till 
the  conditions  are  fully  complied  with ;  and  the  deed  was  accord- 
ingly left  and  Lloyd  went  away.  Jacob  Croxson,  another  wit- 
ness called  by  complainant,  was  present  and  took  the  acknow- 
ledgment on  the  deed  and  mortgage.  He  was  then  going  to 
hand  the  deed  to  William  L.  Lloyd,  but  Parker  and  Ten  Broeck 
objected  to  it,  till  the  conditions  were  complied  with,  and  witness 
gave  the  deed  to  Joseph  Parker.  Lloyd  never  laid  his  finger  on 
it  after  the  acknowledgment  was  taken.  The  testimony  of  Lo- 
gan Bennett,  another  witness  of  the  complainant,  would  lead  to 
a  somewhat  different  conclusion.  He  was  present  at  an  interview 
between  Lloyd  and  Parker.  Lloyd  told  Parker  he  had  come  to 


OCTOBER  TERM,  1831.  467 

Crawford  et  al.  v.  Bertholf  et  al. 

comply;  he  had  Joseph  H.  Van  Mater  security,  and  wanted  the 
deed  that  was  left  with  Mr.  Croxson.  Mr.  Parker  said  he  would 
not  accept  of  Mr.  Van  Mater  as  security,  till  he  had  first  made 
the  bonds  good.  Lloyd  asked  him  if  he  had  not  made,  signed, 
sealed  and  delivered  a  deed,  and  left  it  with  Mr.  Croxson,  till  he 
should  bring  Mr.  Van  Mater  as  security ;  and  he  said  he  had. 
This  is  the  only  evidence  of  a  delivery  of  the  deed  to  Mr.  Crox- 
son, or  any  other  person ;  and  seeing  that  it  is  directly  opposed  to 
the  testimony  of  the  witnesses  who  were  present  when  the  trans- 
action took  place,  and  especially  to  that  of  Jacob  Croxson  himself, 
who  must  have  known  the  fact  if  it  actually  occurred,  I  am  in- 
duced to  believe  that  the  witness  is  under  some  mistake.  The 
same  witnesses  were  also  examined  at  a  different  time,  on  the 
part  of  the  defendants,  to  the  same  points.  Why  this  was  done 
I  do  not  precisely  understand  ;  but  I  would  take  this  opportunity 
of  saying,  that  the  practice  which  sometimes  obtains,  of  examin- 
ing witnesses  a  second  time  on  the  same  matters,  is  one  which 
does  not  receive  the  countenance  of  the  court.  The  facts  stated 
by  the  witnesses,  so  far  as  they  touch  the  point  under  considera- 
tion, are  substantially  the  same  in  both  examinations.  Such  be- 
ing the  evidence,  I  cannot  consider  that  the  deed  in  this  case 
was  delivered. 

It  is  not  necessary  that  there  should  be  an  actual  handing  over 
of  the  instrument  to  constitute  a  delivery.  A  deed  may  be  deli- 
vered by  words  without  acts,  or  by  acts  "without  words,  or  by 
both  acts  and  words:  8 hep.  Touch.  58.  A  deed  may  be  effectu- 
al to  pass  real  estate,  though  it  be  left  in  the  custody  of  the  gran- 
tor. Thus,  if  both  parties  be  present,  and  the  contract  |,s  to  all 
appearance  consummated,  without  any  conditions  or  qualifica- 
tions annexed,  it  is  still  a' complete  and  valid  deed,  notwithstand- 
ing it  be  left  in  the  custody  of  the  grantor:  Souvebye  v.  Arden, 
1  John.  C.  R.  240;  Jones  v.  Jones,  6  Conn.  Rep.  Ill;  Doe  v. 
Knight,  5  Barn,  and  Cress.  671  ;  4  Kenfs  Com.  448.  It  is 
necessary,  however,  that  there  should  be  something  evincing  the 
intent.  It  must  satisfactorily  appear,  if  not  from  acts  and  express 
words,  yet  from  circumstances  at  least,  that  there  was  an  inten- 
tion to  part  with  the  deed,  and  of  course  to  pass  the  title.  See 


468  CASES  IN  CHANCERY. 

Crawford  et  al.  v.  Bertholf  et  al. 

the  case  of  Folly  v.  Fan  Tuyl,  4  Hals.  Rep.  153,  and  the  au- 
thorities there  cited. 

In  the  case  before  me,  the  evidence  very  plainly  opposes  the 
idea  that  there  was  any  delivery  of  the  deed  ;  and  it  proves  that, 
although  there  might  have  been  an  intention  to  deliver  it,  found- 
ed on  a  presumption  that  the  contract  was  about  to  be  consum- 
mated at  that  time,  yet  that  such  intention  was  openly  abandon- 
ed, and  it  was  distinctly  stated  that  the  deed  could  not  and  would 
not  be  delivered  at  that  time.  It  cannot  be  considered  a  delivery. 
There  does  not  appear  to  be  any  room  for  inference  or  doubt ; 
and  without  taking  up  further  time  on  this  part  of  the  case,  I 
am  satisfied  to  say  that  the  complainant  has  no  standing  in  this 
court  on  the  ground  of  his  having  a  legal  mortgage. 

And  this  brings  to  me  the  second  inquiry,  which  is,  whether 
the  complainant  may  not  be  considered,  in  this  court,  in  the  light 
of  an  equitable  mortgagee;  having,  by  reason  of  his  situation, 
peculiar  rights  and  interests,  which  a  court  of  equity  is  bound  to 
protect. 

On  this  part  of  the  subject,  a  correct  understanding  of  the  facts 
is  essentially  necessary  to  lead  to  a  true  result. 

It  appears  that  by  the  terms  of  the  sale,  Joseph  Parker  was 
bound  to  take  in  payment  any  claims  that  might  lawfully  be  pre- 
sented against  the  estate  of  his  father.  When  Lloyd  became 
the  purchaser,  he  had  in  his  hands  some  bonds  purporting  to  be 
charges  against  the  estate,  but  not  enough  to  meet  the  purchase 
money.  At  this  time,  John  Crawford  held  a  single  bill-  against 
the  estate  for  a  little  upwards  of  two  thousand  dollars,  payable 
to  bearer.  This  bill  Crawford  agreed  to  let  Lloyd  have,  to  make 
up  his  payment,  and  Lloyd  agreed  to  give  Crawford  a  first  mort- 
gage upon  the  farm.  Crawford  attended  at  the  time  the  deed  was 
to  be  made.  He  produced  the  bill,  and  handed  it  to  Lloyd,  who 
gave  it  to  Parker  in  part  payment,  together  with  the  other  bills 
or  bonds  that  he  had  against  the  estate.  The  interest  was  cast 
upon  them.  They  were  taken  into  possession  by  Parker.  He 
tore  the  seal  from  two  of  the  instruments,  and  Lloyd  tore  the 
seal  from  a  third  one.  The  seal  was  torn  from  Crawford's  note. 
The  deed  was  produced  and  acknowledged,  ready  for  delivery  ; 
and  it  was  agreed  that  the  deed  should  be  delivered  at  some  future 


OCTOBER  TERM,  1831.  469 


Crawford  et  al.  v.  Bertholf  et  al. 


day>  either  when  a  note  with  security  should  be  given  for  the 
balance  of  the  purchase  money,  or  when  the  conditions  should 
be  fully  complied  with;  but  it  was  distinctly  understood  that  the 
deed  was  not  delivered,  and  was  not  to  be  delivered  at  that  time. 
During  all  this  time  Crawford  was  present.  He  saw  the  notes  or 
bills  received  and  paid.  He  saw  the  seals  torn  from  some  of  them, 
and  the  deed  executed  and  acknowledged.  The  mortgage  was 
produced  which  was  to  be  given  by  Lloyd  to  him :  it  was  ac- 
knowledged there  at  the  same  time  the  deed  was  acknowledged, 
and  was  passed  over  to  him  by  Lloyd,  as  a  security  for  the 
bond  he  had  taken  in  lieu  of  the  single  bill,  and  it  was  afterwards 
recorded. 

It  turned  out,  however,  that  the  contract  was  never  carried  into 
effect.  Suspicions  arose  as  to  the  genuineness  of  two  of  the  bills 
passed  by  Lloyd  to  Parker,  and  Parker  refused  to  deliver  the 
deed,  but  offered  to  return  to  Lloyd  the  notes  and  bills  or  bonds 
received  from  him.  Lloyd  peremptorily  refused  to  receive  them. 
Both  parties  resorted  to  their  legal  remedies.  Parker  brought  an 
ejectment  to  recover  the  possession.  Lloyd  filed  a  bill  for  a  specific 
performance,  and  injoined  Parker  from  proceeding  in  his  action. 
A  feigned  issue  was  awarded  out  of  this  court  to  try  the  genuine- 
ness of  the  two  suspected  bills,  and  they  were  found  to  be  spurious ; 
and  the  result  was,  that  Lloyd's  bill  was  dismissed,  and  Parker 
recovered  possevssion  of  the  land. 

Such  I  take  to  be  the  material  facts  relatthg  to  this  part  of  the 
transaction  ;  and  with  these  facts  before  me,  I  proceed  to  consider 
in  the  first  place,  the  equity  of  Crawford,  as  derived  immediately 
from  Lloyd  the  purchaser,  through  the  medium  of  the  mortgage. 
This,  of  course,  will  depend  on  the  equity  of  Lloyd  the  pur- 
chaser, as  against  Parker  the  vendor.  It  is  a  rule  in  equity,  that 
when  a  contract  is  made  for  the  sale  of  an  estate,  equity  considers 
the  vendor  as  a  trustee  for  the  purchaser  of  the  estate  sold,  and 
the  purchaser  as  a  trustee  of  the  purchase  money  for  the  vendor. 
As  a  consequence  of  this,  it  is  admitted  that  a  purchaser  may 
sell  or  charge  the  estate  before  the  conveyance  is  executed  :  he 
may  come  into  this  court  claiming  a  specific  performance,  and 
compel  the  execution  of  a  title.  Jf  he  has  paid  any  part  of  the 
purchase  money,  he  will  be  considered  as  having  a  lien  on  the 


470  CASES  IN  CHANCERY. 

Crawford  etal.  v.  Bertholf  et  al. 

property  for  the  amount  thus  paid,  and  a  court  of  equity  will  not 
compel  him  to  surrender  possession  until  he  shall  have  been  fully 
satisfied.  But  all  this  proceeds  upon  the  principle  of  honesty  and 
good  faith  between  the  parties :  without  this,  equity  will  not  in- 
terfere. If  there  be  fraud  in  the  transaction,  equity  will  not  yield 
its  aid  to  the  wrong-doer,  but  leave  him  to  his  legal  remedy. 
Where,  then,  is  the  equity  of  Lloyd  ?  He  paid  a  part  of  the  pur- 
chase money,  it  is  true,  in  available  securities  ;  but  for  other  part 
offered  notes  or  bonds  that  were  not  genuine.  He  attempted,  as 
has  already  been  decided  in  this  court,  fraudulently  to  impose 
upon  the  vendor,  and  he  was  considered  as  being  entitled  to  no 
equitable  relief.  He  could  not  obtain  a  decree  for  a  specific  per- 
formance of  the  contract,  but  on  the  ground  of  the  fraud  his  bill 
was  dismissed  out  of  this  court  with  costs.  Under  these  circum- 
stances, I  think  that  Lloyd  personally  had  no  lien  on  the  pro- 
perty for  the  purchase  money  he  had  paid :  he  was  entitled  to  a 
return  of  the  money,  or  to  recover  it  back  of  the  vendor,  but 
nothing  more.  It  is  a  sound  maxim,  -that  he  who  commits  inequity 
shall  not  have  equity  :  Francis  Max,  2  ;  and  in  this  case  the  maxim 
will  well  apply  to  Lloyd.  Such  being  the  case,  he  had  no  equita- 
ble rights  that  he  could  convey  to  Crawford  ;  and  Crawford,  when 
considered  simply  in  the  light  of  a  purchaser  under  Lloyd, 
can  have  no  rights  as  against  the  defendant.  This  is  not  the 
ordinary  case  of  notice,  in  which  it  seems  to  be  settled,  that  if  one 
an°ected  with  notice,  conveys  to  another  without  notice,  the  assignee, 
in  case  he  has  the  legal  estate,  shall  be  protected.  Here  the  as- 
signee has  not  the  legal  estate ;  his  assignor  was  not  affected  with 
notice  of  any  incumbrance  or  claim,  but  was  guilty  of  fraud  ;  and 
he  is  seeking  protection,  not  from  an  incurnbrance,  but  from  the 
owner  of  the  legal  estate. 

If  Crawford  is  entitled  to  relief  in  this  case,  it  is  on  the  ground 
of  fraud,  actual  or  constructive,  on  the  part  of  Parker.  And 
under  this  head  it  is  charged  against  him,  that  he  knew  Craw- 
ford hWl  loaned  the  note  to  Lloyd  to  make  up  the  amount  of  the 
purchase  money,  and  that  he  was  to  be  secured  by  a  first  mort- 
gage on  the  property ;  that  Parker  was  present  when  the  note 
was  passed  over,  and  received  it  from  Lloyd,  and  took  it  as  so 
much  money  ;  that  he  saw  Crawford  take  the  bond  and  mort- 


OCTOBER  TERM,  1831.  471 

Crawford  et  al.  v.  Bertholf  et  al. 

gage  as  his  security,  on  the  express  agreement  that  when  the 
note  with  security  should  be  given  for  the  balance,  the  deed 
should  be  delivered,  and  yet  gave  him  no  notice  of  the  supposed 
fraud  or  forgery ;  but  afterwards  refused  to  comply  with  his 
agreement,  and  kept  the  note  without  delivering  it  up  to  the 
owner;  and  also  that  he  promised,  if  Crawford  would  not  inter- 
fere in  the  suit  with  Lloyd,  or  press  his  mortgage,  he  should  DO 
fully  paid,  and  his  mortgage  should  be  considered  a  lien  on  the 
premises.  As  to  this  last  part,  it  is  fully  denied  in  the  answer, 
and  there  is  no  evidence  whatever  to  support  the  allegation  of  the 
bill.  Nor  is  there  any  evidence  to  show  that  Parker,  in  any  part 
of  the  transaction,  dealt  with  Crawford.  He  made  no  arrange- 
ment with  him  for  his  note,  or  concerning  the  mortgage.  There 
was  no  privity  or  contract  between  them,  so  far  as  I  have  been  able 
to  discover.  But  it  is  evident  tbat  Parker  knew  of  the  loan  by 
Crawford  to  Lloyd,  and  that  Crawford  was  to  be  secured  by  a  mort- 
gage on  the  land  ;  and  it  is  equally  true  that  he  saw  Crawford  take 
the  mortgage,  without  giving  any  notice  of  his  suspicions,  or  in  any 
way  putting  him  on  his  guard. 

It  is  a  general  rule  in  equity,  that  where  a  person  having 
rights,  and  knowing  those  rights,  sees  another  person  take  a 
mortgage  upon  property  without  disclosing  his  title,  he  shall  not 
be  allowed  afterwards  to  set  up  his  title  to  defeat  the  mortgage. 
Thus,  if  a  first  mortgagee  stand  by  and  ^suffer  a  second  mort- 
gagee to  advance  his  money,  on  the  supposition  that  he  is  about 
to  have  the  legal  estate,  without  disclosing  his  own  prior  incum- 
brance,  it  is  an  acquiescence  in  the  transaction,  and  the  suffer- 
ance of  a  fraudulent  treaty  to  go  on,  for  which  he  will  lose  his 
priority:  2  Pow.  437.  So,  in  like  manner,  if  a  mortgagee  per- 
mit a  person  who  has  purchased  the  equity  of  redemption  with- 
out notice,  to  continue  building  on  the  estate  without  giving  him 
notice  of  the  incumbrance,  it  was  held  by  Ld.  Hardvvicke  to  be 
a  reason  why  a  court  of  equity  would  not  aseist  him  in  setting  up 
the  incumbrance :  Steed  v.  WhitaJcer,  Born.  C.  C.  220.  The 
case  of  Haring  v.  Femes,  Gilb.  Eq.  Ca.  85,  is  a  strong  case, 
in  which  a  fraudulent  concealment  was  relieved  against.  A  fa- 
ther, tenant  for  life,  made  a  lease  to  plaintiff  for  thirty  years; 
who,  supposing  his  lessor  to  have  full  power  to  demise  for  that 


472  CASES  IN  CHANCERY. 

Crawford  et  al.  v.  Bertholf  et  al. 

period,  laid  out  considerable  suras  of  money  in  repairs.  The 
defendant  was  the  eldest  son  of  the  lessor,  and  next  tenant  in 
tail  to  the  estate.  The  sou  knew  his  father  had  no  power  to 
make  the  lease,  and  told  him  so,  while  the  improvements  were 
going  on,  but  never  acquainted  the  tenant  with  the  fact;  on  the 
contrary,  he  wrote  to  him  to  keep  the  premises  in  repair.  On 
the  death  of  the  father,  the  son  brought  ejectment  and  recover- 
ed :  whereupon  the  tenant  brought  his  bill  to  be  quieted  in  his 
possession  for  the  residue  of  the  lease;  and  the  court  decreed 
in  his  favor,  on  the  ground  of  a  fraudulent  concealment.  There 
are  a  great  variety  of  cases  under  this  head  of  equity,  to  which 
it  is  not  considered  necessary  to  advert  particularly.  They  go  on 
the  ground  of  misrepresentation  or  fraudulent  concealment,  where- 
by an  innocent  person  is  induced  to  do  what  he  otherwise  would 
not  do. 

In  the  case  before  me,  I  do  not  find  any  misrepresentation  on 
the  part  of  Parker;  for  the  fraud  must  be  brought  home  to  him. 
It  is  not  sufficient  that  fraud  was  practiced  by  Lloyd  ;  there  is  no 
pretence  that  Parker  participated  in  that.  Then  as  to  the  con- 
cealment; Crawford  was  present  during  the  whole  time.  He 
knew  there  was  no  delivery  of  the  deed,  no  actual  transfer  of  the 
title,  but  that  the  matter  was  to  be  consummated  at  some  future 
day.  The  time  when  and  the  mode  in  which  this  consumma- 
tion was  to  take  place,  was  also  known,  and  doubtless  it  was  the* 
expectation  of  all  that  the  title  would  be  perfected.  But  for  the 
fraud  of  Lloyd  it  would  have  taken  place.  I  can  see  no  ground 
to  charge  Parker,  except  that  he  did  not  apprize  Crawford  of  his 
suspicions  that  the  bonds  were  forged.  But  these  were  mere  sus- 
picions, he  had  no  knowledge  of  the  fact;  and  I  think  it  would 
be  carrying  the  doctrine  too  far  to  say,  that  because  he  did  not 
at  that  time,  and  under  the  circumstances  of  delicacy  in  which 
he  was  placed,  communicate  his  suspicions  to  Crawford,  there- 
fore he  is  to  be  considered  as  liable  to  the  imputation  of  fraud.  A 
party,  to  be  charged  on  the  ground  of  concealment,  should  be 
aware  of  his  rights.  Fraud  implies  knowledge.  If  there  was 
a  mistake,  this  court  will  dot  consider  it  fraud.  In  the  case  of 
Cholmonddy  v.  Clinton  and  al.,  2  Mer.  361,  Ld.  Eldon  says: 
"  If,  indeed,  Ld.  Orford  had  been  aware  of  his  title,  and  had  stood 


OCTOBER  TERM,  1831.  473 


Crawford  et  al.  v.  Bertholf  et  al. 


by  and  seen  persons  advancing  money  on  the  estate,  on  the  faith 
of  its  belonging  to  Ld.  Clinton,  some  question  might  be  made  on 
the  ground  of  acquiescence.  But  Ld.  Orford  could  not  be  said  to 
acquiesce  in  acts  which  he  did  not  know  he  had  any  right  to  dis- 
pute; and  therefore,  all  that  has  been  said  about  acquiescence 
seems  to  be  irrelevant  in  a  case  where  all  parties  were  under  the 
influence  of  a  common  mistake." 

It  is  said,  however,  that  Parker  was  guilty  of  a  fraud  in  not  de- 
livering the  bill  back  to  Crawford  ;  but  I  cannot  concur  in  that 
view  of  the  case.  As  before  remarked,  Parker  did  not  deal  with 
Crawford.  When  Lloyd  failed  to  comply,  he  was  entitled  to 
receive  back  what  he  had  paid  ;  and  it  was  offered  him,  and  he 
refused  to  take  it.  This  single  bill  came  from  Lloyd  to  Parker, 
and  not  from  Crawford.  It  belonged  to  Lloyd,  for  he  had  pur- 
chased it,  and  it  would  have  been  singular  if  Parker  had  offered 
it  to  Crawford  and  not  to  Lloyd,  from  whom  he  got  it.  It  is  to  be 
remembered,  too,  that  Crawford  knew  the  contract  was  not  com- 
pleted ;  that  the  deed  was  not  made  and  would  not  be  made.  If 
he  had  taken  the  least  trouble  or  pains,  he  might  have  recovered 
the  possession  of  his  bill,  and  would  have  been  in  as  good  a  situa- 
tion as  before  he  passed  it  to  Lloyd.  The  mutilation  of  the  note, 
by  tearing  off  the  seal,  could  not  have  affected  its  validity  or  im- 
paired his  rights ;  and  the  probability  is  he  would  have  received 
his  money.  That  the  estate  and  property  to  which  he  must  look 
for  payment,  has  since  become  wasted,  in  consequence  of  which  the 
complainant  may  suffer  loss,  does  not  alter  principles  ;  nor  can  it, 
in  this  case,  furnish  a  substantive  ground  for  relief. 

The  result  of  this  view  of  the  case  is,  that  the  complainants  have 
shown  no  sufficient  ground  of  equity  to  entitle  them  to  relief. 
Without,  therefore,  giving  any  opinion  as  to  the  defence  of  Ber- 
tholf, who  claims  to  be  a  bona  fide  purchaser  from  Parker,  without 
notice  and  for  a  valuable  consideration,  I  shall  order  the  bill  to  be 
dismissed,  with  costs. 

CITED  in  Force  v.  Dutcher,  2  C.  E.  Gr.  168  ;  Woodward  v.  Woodward,  4  Hal. 
Ch.  784 ;  Hauyhwout  v.  Murphy,  7  C.  E.  Gr.  546 ;  Cannon  v.  Cannon,  11  C. 
E.  Gr.  320. 


474  CASES  IN  CHANCERY. 


Clutch  v.  Clutch. 


ACHSAH  CLUTCH  v.  JAMES  CLUTCH. 


In  divorce  cases  the  court  takes  the  confessions  of  parties  with  very  great  cau- 
tion, and  they  are  never  held  sufficient  without  strong  corroborative  circum- 
stances. 

A  voluntary  affidavit  taken  before  a  magistrate  is  inadmissible  as  evidence. 

A  charge  in  the  petition,  that  the  defendant  since  his  marriage  hath  committed 
adultery,  without  setting  forth  time,  place,  or  circumstances,  is  too  general. 

Upon  evidence  of  extreme  cruelty,  though  not  a  case  of  the  most  aggravated 
character,  a  separation  decreed  for  the  terra  of  three  years  ;  and  the  child, 
being  of  tender  years,  committed  to  the  custody  of  the  mother. 

Query.  Whether  a  charge  for  adultery,  and  a  charge  for  extreme  cruelty,  ought 
to  be  joined  in  the  petition. 


This  was  on  petition  for  a  divorce  a  vinculo  matrimonii,  on  the 
ground  of  adultery,  and  for  a  divorce  from  bed  and  board,  on  the 
ground  of  extreme  cruelty. 

H.  W.  Green,  for  petitioner. 

THE  CHANCELLOR.  As  it  regards  the  charge  of  adultery,  the 
case  is  not  satisfactorily  made  out.  One  witness  states,  that  while 
the  defendant  lived  in  the  house  of  his  father-in-law,  Wilkinson,  he 
told  witness  that  he,  the  defendant,  had  the  venereal  disease  ;  that 
he  had  contracted  it  in  New-York,  and  that  Dr.  Hamilton  was 
attending  him.  This  is  the  only  direct  evidence  of  the  fact  that 
has  been  presented.  The  evidence,  of  itself,  is  insufficient.  In 
cases  of  this  kind,  the  court  takes  the  confessions  of  parties  with 
very  great  caution,  and  they  are  never  held  sufficient  without 
strong  corroborating  circumstances.  In  this  case  there  are  no 
such  circumstances.  The  testimony  of  Phinoas  S.  Bunting  is 
relied  on  as  corroborating  the  confession  of  Clutch.  He  states, 
that  pending  an  application  to  the  legislature  for  a  divorce  be- 
tween these  parties,  Dr.  Hamilton  was  examined  as  a  witness 
before  him  as  a  justice  of  the  peace  ;  and  that  upon  the  exami- 
nation, Dr.  H.  deposed,  that  Clutch  had  made  application  to  him. 
for  medical  advice,  and  he  ascertained  that  Clutch  had  the  veue- 


OCTOBER  TERM,  1831.  475 


Clutch  v.  Clutch. 


real  disease.  Clutch  told  him  he  had  contracted  it  in  Philadel- 
phia. The  affidavit  of  Dr.  Hamilton,  as  taken  before  the  magis- 
trate, is  also  produced.  This  testimony  is  clearly  inadmissible. 
The  affidavit  itself  is  taken  without  any  kind  of  authority,  and 
is  purely  voluntary.  The  whole  of  it  amounts  to  nothing  more 
than  hearsay  evidence,  and  is  entitled  to  no  weight  in  the  search 
after  truth. 

I  would  add,  also,  that  the  charge  of  the  fact  in  the  petition  is 
too  general.  It  simply  states  that  the  defendant  hath,  since  his 
marriage,  committed  adultery;  without  setting  forth  the  time, 
place,  or  any  of  the  circumstances.  It  would  be  difficult  for  a  de- 
fendant to  meet  so  indefinite  a  charge. 

The  prayer  of  the  petitioner,  so  far  as  it  seeks  a  divorce  a  vinculo 
matrimonii,  is  refused. 

Upon  the  other  charge,  there  is  testimony  to  show  that  the 
complainant  has  been  treated  with  very  great  impropriety  on  the 
part  of  her  husband.  He  is  proved  to  be  an  intemperate  man, 
and  grossly  abusive.  In  one  instance  he  turned  his  wife  and 
children  out  of  doors,  and  compelled  her  to  tftke  refuge  in  her 
father's  house.  In  another,  he  is  represented  as  having  taken 
her  up  forcibly  and  turned  her  out  of  doors,  and  then  shutting 
the  door  against  her.  She  has  exhibited  marks  and  bruises  upon 
her  person,  which  she  represented  to  be  the  effect  of  his  violence. 
He  has  frequently  refused  to  provide  for  his  family  the  common 
necessaries  of  life,  and  left  them  destitute  •••and  several  witnesses 
concur  in  the  opinion,  that  it  would  unsafe  for  her  to  live  with 
him.  Under  these  circumstance,  I  feel  inclined  to  grant  the 
application  for  a  separation  from  bed  and  board,  although  the 
case  is  certainly  not  one  of  the  most  aggravated  character;  and 
in  the  hope  that  some  reformation  may  be  brought  about  and  the 
parties  become  reconciled,  I  shall  decree  a  separation  for  the  term 
of  three  years;  and  in  the  mean  time  the  child,  who  is  of  tender 
years,  is  to  be  committed  to  the  custody  of  the  mother. 

I  do  not  wish  to  be  misunderstood  as  expressing  any  opinion  on 
the  propriety  of  joining  in  one  petition  a  charge  for  adultery  and 
a  charge  for  extreme  cruelty,  the  legal  consequences  of  which  are 
so  totally  different.  I  incline  to  think  it  should  not  be  done.  But 
as  the  defendant  has  not  appeared  to  contest  the  suit,  or  meet 


476  CASES  IN  CHANCERY. 

Quackenbush  v.  Van  Riper. 

either  of  the  charges;  and  as  this  is  a  case  on  petition  under  a 
late  statute,  by  which  the  complainant  has  a  right  to  amend  her 
petition  in  matters  of  substance  as  well  as  form,  and  as  she  comes 
into  court  in  forma  pauperis,  I  have  thought  proper  to  pass  by  the 
question,  if  it  be  one,  and  place  myself  upon  the  merits. 
Decree  accordingly. 

CITED  irt  Graecen  v.  Graecen,  1  Gr.  Ch.  466 ;  Marsh  v.  Marsh,  1  C.  E,  Gr.  396 ; 
Close  v.  Close,  9  C.  E.  Gr.  346. 


ABRAHAM  A.  QUACKENBUSH  v.  ABRAHAM  VAN  RIPER 


A  defence  which  might  be  made  at  law,  and  which  a  party  will  omit  or  decline 
to  make,  cannot  be  the  basis  of  a  suit  in  equity ;  unless  it  be  in  case  of 
fraud,  accident  or  trust,  peculiarly  within  the  province  of  a  court  of  equity, 
or  when  the  jurisdiction  of  the  legal  tribunal  cannot  admit  the  defence. 

When  the  facts  are  such  as  constitute  no  defence  at  law,  though  properly  pro- 
duced ;  if  they  are  matters  of  which  a  court  of  law  can  take  no  cognizance, 
and  such  as  are  peculiarly  within  the  province  of  a  court  of  equity;  there 
can  be  no  objection  to  the  bill  on  the  ground  that  it  was  not  filed  pending 
the  suit  at  law,  and  an  injunction  cannot  be  dissolved  on  that  ground. 

If  a  defendant  in  his  answer  charge  certain  facts  to  exist,  on  which  he  intends  to 
rely  for  his  defence,  and  swears  to  the  answer  in  the  ordinary  form,  he  sweara 
to  the  truth  of  the  facts,  and  not  to  the/ac<  of  the  charge  ;  and  if  the  facts  aa 
charged  are  not  true,  perjury  may  be  assigned  upon  it. 

It  is  not  sufficient  for  the  defendant  in  his  answer  to  say  he  does  not  know  it,  or 
does  not  believe  it;  as  that  may  all  be  true,  and  yet  the  fact  charged  be  un- 
contradicted. 

What  is  necessary,  and  sufficient,  in  an  answer. 

When  a  charge  is  not  fully  answered,  yet  if  the  complainant  do  not  show  himself 
entitled  to  claim  the  equity  growing  out  of  that  transaction,  it  will  not  stand 
in  the  way  of  dissolving  an  injunction. 

When  the  answer  is  sufficient,  and  the  complainant's  equity  denied,  the  injunction 
will  be  dissolved.  

The  injunction  in  this  case  was  allowed  on  the  following  state  of 
facts,  as  set  forth  in  the  bill. 

On  the  25th  March,.  1825,  the  complainant  purchased  of  the 
executors  of  Garret  Lydecker,  deceased,  a  farm  in  Bergen,  con- 
taining eighty-seven  acres  and  eighty-four  hundredths  of  an 
acre,  for  the  sum  of  three  thousand  seven  hundred  and  fifty  dol- 


OCTOBER  TERM,  1831.  477 

Quackenbush  v.  Van  Kiper. 

lars,  and  received  a  conveyance  therefor.  Running  through 
these  premises  is  a  natural  stream  of  water,  across  which  there 
was  at  the  time,  and  had  been  for  ten  or  eleven  years  previous,  a 
dam,  for  the  use  of  a  turning-mill.  After  the  purchase  com- 
plainant built  a  dam  and  cotton  manufactory.  In  the  life-time 
of  Lydecker,  from  whose  executors  the  complainant  purchased, 
one  Abraham  Forshee  owned  the  lands  now  in  possession  of  de- 
fendant, and  adjoining  the  lands  of  the  complainant.  The 
stream  of  water  before  spoken  of  runs  first  through  the  lands  of 
the  defendant,  and  then  through  the  lands  of  the  complainant. 
About  the  year  1812,  when  the  premises  now  owned  by  the 
complainant  and  defendant  were  owned  by  Forshee  and  Lydeck- 
er severally,  they  agreed  to  sell  to  one  Jesse  Chapel  a  mill  site 
on  this  stream  for  a  turning-mill.  The  dam  was  to  be  near  the 
division  line  where  it  crossed  the  brook.  Each  was  to  make  a 
deed  to  Chapel  for  one  hundred  feet  square  of  land,  with  the  right 
of  flowing  back  the  water,  for  which  each  was  to  receive  the 
sum  of  five  pounds.  Chapel  paid  the  consideration  money  and 
took  possession,  and  had  the  deeds  prepared  at  his  own  expense ; 
but  they  were  not  executed  on  account  of  some  dispute  between 
Lydecker  and  Forshee  about  the  line  of  division,  and  it  was  de- 
ferred to  a  future  day.  Chapel  remained  in  possession,  erected  a 
dam,  and  flowed  back  the  water  up  to  what  is  called  the  Great 
Falls,  or  nearly  so,  and  erected  a  turning-mill,  and  occupied  it 
for  several  years.  After  this  Lydecker  came  into  the  possession 
of  it,  and  claimed  to  hold  it  under  Chapel,  and  after  Ly decker's 
death  it  was  held  by  his  children  or  some  of  them.  The  com- 
plainant purchased  of  the  executors  of  Lydecker,  having  under- 
stood from  Forshee  that  he  had  sold  to  Chapel  and  received  his 
money,  as  aforesaid,  and  that  Chapel  had  the  privilege  of  flow- 
ing back  the  water  as  far  as  his  interest  might  require;  and  he 
purchased  under  the  belief  that  by  such  purchase  he  acquired  all 
Chapel's  right. 

On  the  first  day  of  May,  1818,  and  before  the  complainant  pur- 
chased, Forshee  sold  to  the  defendant  the  property  adjoining. 
The  conveyance,  though  absolute  on  the  face  of  it,  was  never- 
theless only  in  the  nature  of  a  mortgage.  The  complainant 
knew  of  this  conveyance  before  he  purchased  of  Ly  decker's  ex- 


478  CASES  IN  CHANCERY. 

Quackenbush  v.  Van  Riper. 

ecutors;  but  he  understood  from  Forshee  that  the  part  sold  to 
Chapel  had  been  excepted  :  and  supposing  that  to  be  the  case, 
and  knowing  that  the  defendant  was  apprised  of  all  the  circum- 
stances, he  went  on  to  erect  a  dam  and  cotton  mill ;  and  it  was 
not  until  he  had  progressed  in  the  work,  that  he  discovered,  on 
searching  the  records,  that  there  was  no  such  reservation  in  the 
deed. 

The  bill  then  charges  that  the  defendant,  before  he  obtained 
his  title  from  Forshee,  had  notice  that  Forshee  had  sold  to  Chapel, 
and  that  Forshee,  when  he  agreed  to  make  the  conveyance,  told 
him  that  the  rights  and  privileges  of  Chapel  ought  to  be  except- 
ed in  the  deed  :  that  Forshee  was  an  unlettered  man,  and  never 
in  truth  intended  to  convey  them  to  the  defendant:  and  further, 
that  after  he  obtained  his  deed,  he  the  defendant,  told  the  com- 
plainant that  Forshee  informed  him  of  the  sale  to  Chapel :  that 
Chapel,  or  some  person  under  him,  was  in  possession  when  the 
defendant  purchased  in  1818,  and  continued  so  without  any  claim 
or  pretence  of  right  on  the  part  of  the  defendant. 

After  the  complainant  had  made  some  progress  in  the  erection 
of  his  dam,  he  was  apprised  by  the  defendant  that  he  the  de- 
fendant intended  to  dispute  the  right  of  flowing  back  water  on 
his  land ;  whereupon  the  complainant,  ascertaining  that  there 
was  no  reservation  in  the  deed  from  Forshee  to  the  defendant, 
thought  it  advisable  to  negociate,  and  had  several  friendly  con- 
versations with  the  defendant,  and  under  the  assurance  that  the 
difficulties  between  them  should  be  amicably  settled,  he  progress- 
ed in  the  erection  of  his  dam  and  mill :  that  while  they  were  in 
progress  in  1827,  the  defendant  proposed  to  him  that  if  he  would 
give  him  counsel  and  advice  in  locating  and  constructing  a  dam 
and  race  for  a  mill  or  manufactory  that  the  defendant  contem- 
plated erecting  on  the  said  stream,  that  all  matters  in  difference 
as  it  regarded  flowing  back  the  water  should  be  settled.  This 
was  done ;  he  gave  the  advice  and  instruction  which  was  benefi- 
cial to  the  defendant,  and  he  acted  in  accordance  with  it ;  and 
the  complainant,  supposing  all  things  finally  adjusted,  went  on  and 
completed  his  dam  and  mill. 

Soon  after  this,  the  defendant  commenced  an  action  against 
the  complainant  in  the  supreme  court,  which  was  tried  in  the 


OCTOBER  TERM,  1831.  479 

Quackenbush  v.  Van  Riper. 

county  of  Bergen,  and  a  verdict  was  obtained  against  the  com- 
plainant for  one  hundred  and  forty-five  dollars  damages,  on 
which  a  judgment  has  been  entered  and  execution  issued,  which 
is  how  in  the  hands  of  the  sheriff  of  Bergen ;  since  which  the 
defendant  has  again  commenced  another  suit  against  him  in  the 
said  supreme  court. 

The  bill  then  charges,  that  the  defendant  is  not  a  tenant  in  fee 
of  the  premises:  that  the  deed  under  which  he  holds  was  intend- 
ed only  as  a  mortgage  and  security  for  money  loaned ;  and  that 
Forshee  remained  in  possession  after  the  deed -was  given,  and  the 
defendant  received  from  him  payments  on  account  of  interest. 
That  afterwards  the  defendant  pretended*  that  the  deed  was  an 
absolute  one,  and  that  Forshee  had  no  right  of  redemption ;  and 
exacting  of  Forshee  more  money  by  way  of  rent  than  the  interest 
of  the  money,  Forshee  abandoned  the  premises.  That  the  com- 
plainant has  since  purchased  of  Forshee  and  wife  their  equity  of 
redemption. 

Under  these  circumstances  the  complainant  insisted,  that  the 
defendant,  being  but  a  mortgagee,  should  come  to  an  account, 
and  on  receiving  the  balance  due  convey  the  premises  to  him; 
or  that  he  ought  to  convey  the  mill  seat  to  him,  and  carry  into 
effect  the  agreement  with  Chapel ;  and  that  in  the  mean  time 
he  ought  to  be  restrained  from  prosecuting  any  other  or  farther 
suit  against  the  complainant. 

The  injunction  restrained  the  defendant  not  only  from  prose- 
cuting the  suit  then  pending,  but  also  from  collecting  the  amount 
recovered  in  the  first  suit. 

The  answer  admits  the  sale  from  the  executors  of  Lydecker  to 
the  complainant,  and  that  for  about  ten  or  eleven  years  before 
this  purchase  there  had  been  a  dam  across  the  stream,  which 
had  been  used  for  a  turning-mill ;  but  denies  that  the  said  dam 
was  on  the  lot  of  laud  and  premises  purchased  by  the  complain- 
ant ;  on  the  contrary,  he  says  it  was  on  the  land  the  defendant 
purchased  of  Forshee.  He  denies  that  when  the  complainant 
purchased  the  turning-mill  was  standing,  and  insists  that  the 
water  power  intended  to  be  purchased  by  the  complainant  was 
that  which  was  on  the  lot  below  the  turning-mill  dam  ;  and  that 

O  * 

at  the  time  of  the  purchase  the  complainant  had  no  expectation 


480  CASES  IN  CHANCERY. 

Quackenbush  v.  Van  Riper. 

of  availing  himself  of  the  water  power  created  by  the  turning- 
mill  dam,  or  of  flowing  the  water  above  the  said  dam.  He  ad- 
mits that  about  1812,  when  Lydecker  and  Forshee  owned  the 
lands  now  owned  by  the  complainant  and  defendant,  they  agreed 
to  sell  to  Jesse  Chapel  a  site  for  a  dam  and  turning-mill.  The 
dam  was  to  be  on  the  division  line:  that  deeds  were  to  be  made, 
and  five  pounds  to  be  paid  by  Chapel  to  each  :  that  Chapel 
took  possession  and  built  his  mill  and  dam,  but  denies  that  the 
water  was  flowed  up  to  the  Great  Falls,  or  nearly  there.  He  de- 
nies that  the  said  Jesse  Chapel  was  in  possession  of  the  dam,  or 
that  the  turning-mill,  as  such,  was  standing  when  the  complain- 
ant purchased  ;  and  states  that  he  (Chapel)  abandoned  the  pre- 
mises, and  the  works  of  the  turning-mill  were  removed  some 
years  before.  He  denies  that  Lydecker  in  his  life-time,  or  any  of 
his  children  after  his  death,  were  in  possession  of  the  turning-mill 
or  dam,  or  that  they  claimed  the  right  to  flow  back  water  on  the 
lands  of  the  defendant.  He  says  that  when  he,  this  defendant, 
purchased  of  Forshee,  Chapel  was  yet  living  near  the  premises, 
and  did  not  claim  any  right  or  interest  in  the  said  dam  or  lots  of 
land.  He  admits  that  he  gave  notice  to  the  complainant  not  to 
flow  back  the  water  further  than  the  defendant's  line,  and  states 
that  the  complainant  disclaimed  any  right  to  flow  back  further 
than  the  dam,  which  was  agreed  to  be  the  line.  He  admits  the 
conveyance  from  Forshee  to  him  in  1818,  and  that  it  was  abso- 
lute in  form,  and  denies  that  there  was  any  understanding  or  in- 
tention whereby  it  was  to  have  the  operation  of  a  mortgage  only ; 
but  that  the  sale  and  conveyance  were  in  truth  absolute  and  un- 
conditional, and  were  so  intended  to  be.  He  denies  any  notice 
of  the  right  or  claim  of  Chapel,  save  that  lie  had  heard  some 
bargain  had  been  made  upon  the  subject,  and  enquired  of  For- 
shee about  it,  who  told  him  there  had  been  a  verbal  bargain  on 
the  subject,  but  that  Chapel  had  not  paid  the  money  and  no 
deeds  had  been  executed,  and  that  Chapel  had  no  interest  what- 
ever in  the  premises.  He  denies  that  Forshee  was  an  unlettered 
man,  or  that  he  intended  to  make  any  reservation.  He  denies 
that  he  ever  told  the  complainant,  before  he  built  his  dam,  that 
Forshee  at  the  time  he  conveyed  to  this  defendant,  informed  him 
that  he  (Forshee)  had  sold  or  agreed  to  sell  to  Chapel  such  lot 


OCTOBER  TERM,  1831.  481 

t 

Quackenbush  v.  Van  Riper. 

and  water  privilege  as  aforesaid,  and  that  he  had  received  his  pay 
for  it.  He  denies  that  he  ever  conversed  at  all  with  complainant 
on  the  subject  of  Chapel's  purchase  till  long  after  he  commenced 
his  first  suit  against  complainant,  since  which,  in  conversing  with 
the  complainant,  he  has  always  insisted,  as  he  knows  the  fact  to  be, 
that  at  the  time  of  the  said  purchase,  Jesse  Chapel  not  only  had 
no  claim  to  the  said  property  or  any  part  thereof,  but  did  not  pre- 
tend to  make  any  claim  thereto. 

The  defendant  admits  that  at  the  time  he  purchased  of  Abra- 
ham Forshee,  Chapel  was  in  possession  of  the  turning-mill  and 
dam,  and  flowed  the  water  back  for  some  distance  upon  the  land 
of  this  defendant;  but  he  claimed  no  right  or  title  to  the  same, 
and  applied  to  this  defendant  to  purchase  it ;  and  not  being  able 
to  purchase  it,  he  gave  up  the  possession  to  the  defendant  and 
left  the  state,  since  which  no  person  has  ever  used  the  turning- 
mill  except  a  man  by  the  name  of  Waite,  who  used  it  for  a  short 
time  under  an  agreement  with  this  defendant  and  the  said  Ly- 
decker,  to  pay  a  certain  rent  therefor — one  half  of  which  was  to 
be  retained  by  the  said  Lydecker,  as  the  turning-mill  was  on  his 
side  of  the  line,  and  the  other  half  was  to  be  retained  by  this  de- 
fendant, as  he  owned  the  dam  and  water  power. 

The  defendant  admits  that  when  complainant  was  building 
his  dam,  he  had  frequent  conversations  with  him  upon  the  sub- 
ject of  the  dam  and  water  power,  and  offered  to  purchase  the 
right  to  flow  back  the  water  upon  the  lands  of  this  defendant, 
but  that  no  agreement  was  made.  He  denies  that  he  ever  made 
any  bargain,  as  is  set  forth  in  the  bill,  about  the  location  of  a  dam 
and  mill  for  this  defendant,  or  about  his  counsel  and  advice  there- 
for. He  denies  also  that  he  employed  him  to  locate  his  dam  or 
factories.  He.  also  denies  that  he  held  or  holds  the  property  as  a 
mortgagee  in  possession,  and  that  Forshee  had  any  right  of  re- 
demption; but  admits  that  he,  Forshee,  remained  in  possession  for 
two  years,  paying  rent  to  an  amount  not  half  equal  to  the  legal  in- 
terest of  the  purchase  money,  and  then  left  the  possession.  And 
further  admits  that  he  would  have  been  willing  to  take  from  For- 
shee or  any  other  person  what  he  gave  for  the  property,  but  denies 
that  he  ever  received  any  money  by  way  of  interest  either  from 
Forshee  or  any  other  person  or  persons. 


482  CASES  IN  CHANCERY. 

« 

Quackenbush  v.  Van  Riper. 

On  the  coming  in  of  the  answer,  it  was  moved  to  dissolve  the 
injunction. 

E.  Van  Arsdale,  for  complainant. 

Th.  Frelinghuysen  and  Ph.  Dickerson,  for  defendant. 

Cases  cited  -.—Eden  I.  79  ;  1  Ves.jr.  426  ;  1  John.  C.  R.  49, 
444,  320,  91,  465;  2  John.  C.  R.  202,  228  ;  4  John.  O.  R.  510, 
497  ;  Wyatt.  C.  11,  14,  234,  236  ;  Coop.  E.  313  ;  11  Ves.jr.  303  ; 
-Bear/i.  G  179. 

THE  CHANCELLOR.  The  first  ground  taken  for  dissolving 
the  injunction  is  rather  preliminary,  having  no  connection  with 
the  main  question,  and  applying  to  only  a  part  of  the  case.  It 
relates  to  the  judgment  and  execution  in  the  first  suit;  and  is, 
that  the  application  is  too  late;  that  the  party  being  conversant 
of  all  the  facts  before  the  trial,  made  no  defence  at  law,  nor 
any  application  for  the  aid  of  this  court.  The  proposition  as  laid 
down  by  the  defendant's  counsel,  appears  to  me  to  be  too  broad, 
and  would  seem  to  lead  to  the  conclusion,  that  in  no  case  will  a 
court  of  equity  interfere  after  verdict  and  judgment,  where  a  par- 
ty was  apprised  of  the  facts  on  which  his  equity  rested,  and  did 
not  file  his  bill  before  judgment  rendered.  The  authorities  cited 
do  not  go  this  length.  The  case  of  Lansing  v.  Eddy,  1  John. 
C.  R.  49,  was  a  case  of  usury,  where  the  defendant,  after  judg- 
ment and  execution,  sought  for  a  discovery,  and  to  obtain  a  re- 
turn of  the  excess  beyond  the  principal  sum  loaned  and  interest. 
An  application  for  an  injunction  was  refused,  because  the  defence 
of  usury  could  have  been  made  at  law,  and  no  reason  was  as- 
signed why  it  was  not.  In  Simpson  v.  Hart,  1  John.  C.  R. 
98,  the  injunction  was  dissolved  on  the  ground  that  the  same 
matter  had  been  examined  by  a  court  having  competent  power 
and  jurisdiction  to  pass  upon  it.  The  case  of  Drage  v.  Strong, 
2  John.  C.  R.  2-30,  was  on  a  motion  to  dissolve  the  injunction 
upon  the  coming  in  of  the  answer.  It  appeared  that  the  party, 
having  lost  the  opportunity  of  a  new  trial  at  law  by  his  own  de- 
fault, came  into  this  court  to  obtain  a  new  trial,  and  the  injunc- 


OCTOBER  TERM,  1831.  483 

Quackenbush  v.  Van  Riper. 

tion  was  dissolved.  In  Williams  v.  Lee,  3  Atk.  223,  lord  Hard- 
wicke  held,  that  the  court  would  not  always  relieve  against  a  ver- 
dict where  the  defendant  submits  to  try  it  at  law  first,  when  he 
might  by  a  bill  of  discovery  have  come  at  the  facts  by  the  plain- 
tiff's answer  under  oath,  before  any  trial  at  law  was  had.  It  is 
evident  that  these  cases  all  go  on  the  principle  of  laches  in  the 
party  who  seeks  redress,  because  he  has  not  brought  his  facts  pro- 
perly before  the  court  by  witnesses,  or  has  not  procured  through 
the  oath  of  his  adversary,  by  a  bill  of  discovery,  matters  that  might 
have  availed  him  on  the  trial  at  law;  and  th'ey  go  upon  the  fur- 
ther principle,  that  if  the  facts  had  been  made  to  appear  they  would 
have  constituted  a  defence  at  law.  But  if  the  facts  are  such  as 
constitute  no  defence  at  law,  though  properly  produced  ;  if  they 
are  matters  of  which  a  court  of  law  can  take  no  cognizance,  then,  I 
apprehend,  there  can  be  no  objection  to  the  bill  on  the  ground  that 
it  was  not  filed  pending  the  suit. 

The  complainant's  equity  in  this  case  rests  on  matters  of  trust, 
such  as  are  not  cognizable  in  courts  of  law,  and  can  avail  no- 
thing there  against  a  legal  title.  A  simple  bill  of  discovery  in 
such  case  would  have  been  useless  and  nugatory,  and  if  all  the 
facts  had  been  plainly  proved  it  could  not  have  varied  the  result 
in  point  of  law.  In  Bateman  v.  Miller ,  1  Sell,  and  Lef.  201,  Ld. 
Redesdale  makes  it  a  part  of  the  rule  that  prevents  this  court 
from  interfering  with  a  matter  which  hac^-  been  tried  in  another 
tribunal,  that  it  be  one  over  ichich  the  court  of  law  had  full  jurisdic- 
tion. 

The  true  rule  is  given  by  Spencer,  J.,  in  McVicker  v.  Wolcott,  4 
John.  R.  533: — "It  is  an  undeniable  proposition  that  a  defence 
which  might  be  made  at  law,  and  which  a  party  will  either  omit  or 
decline  to  make,  cannot  be  the  basis  of  a  suit  in  equity,  unless  it  be 
in  cases  of  fraud,  accident  or  trust  peculiarly  within  the  province 
of  a  court  of  equity,  or  where  the  jurisdiction  of  the  legal  tribunal 
cannot  admit  the  defence."  Inasmuch,  then,  as  the  matters  which 
are  the  foundation  of  the  complainant's  suit  are  such  as  were  pecu- 
liarly within  the  province  of  a  court  of  equity,  the  injunction  can- 
not be  dissolved  on  that  ground. 

It  is  sought,  however,  to  dissolve  the  injunction,  because  the 
equity  of  the  complainant's  bill  has  been  fully  answered.  The 


484  CASES  IN  CHANCERY. 

Quackenbush  v.  Van  Kiper. 

fulness  of  the  answer  is  disputed  in  several  particulars;  and  it  is 
contended,  in  the  first  place,  that  the  defendant  has  not  denied 
the  payment  of  the  five  pounds  by  Chapel  to  Lydecker  and  For- 
shee ;  that  by  this  payment  Chapel  became  the  beneficial  owner, 
and  the  complainant  has  succeeded  to  his  right,  and  therefore  the 
charge  is  material.  There  certainly  is  not  a  full  denial  of  this 
part  of  the  bill.  It  is  not  sufficient  for  the  defendant  to  say,  he 
does  not  know  it  or  does  not  believe  it.  That  may  all  be  true, 
and  yet  the  fact  charged  remain  uncontradicted.  If,  therefore, 
Chapel  was  setting  up  this  matter  against  the  claim  of  the  de- 
fendant, I  should  have  no  hesitation  in  saying  that  the  equity  of 
the  bill  in  this  behalf  was  not  answered.  But  it  is  set  up  by  a 
third  person,  and  I  do  not  see  that  he  has  any  equitable  right  to 
avail  himself  of  it.  He  does  not  set  out  in  his  bill  any  contract, 
either  legal  or  equitable,  whereby  he  claims  right  to  succeed  to 
the  equities  of  Chapel.  He  shows  no  title  or  conveyance,  no  pri- 
vity either  of  estate  or  contract  between  himself  and  Chapel,  or 
between  Chapel  and  Lydecker,  under  whom  he  claims  immediately. 
On  this  subject  the  bill  charges,  that  the  said  Garret  A.  Lydecker, 
for  some  time  previous  to  his  death,  was  in  the  possession,  use  and 
enjoyment  of  the  said  turning-mill  and  dam,  so  erected  by  the  said 
Jesse  Chapel,  and  held  or  claimed  to  hold  the  same  under  the  said 
Jesse  Chapel,  and  so  held  the  same  during  his  life,  and  aftet  his 
death  the  same  was  held,  used  and  enjoyed  by  his  children  or  some 
of  them,  without  any  interruption  or  objection  by  or  from  the  said 
Abraham  Forshee  or  the  said  Abraham  Van  Riper,  till  the  com- 
plainant purchased  the  said  premises. 

The  allegation  that  he  held  or  claimed  to  hold  under  him,  is 
exceedingly  vague  and  unsatisfactory,  and  seems  almost  to  imply 
a  doubt  in  the  mind  of  the  complainant  himself  as  to  his  rights. 
It  certainly  is  not  sufficient  to  entitle  him  to  claim  the  right  that 
Chapel  obtained  by  his  purchases  and  possession.  If  there  is  any 
thing  in  it,  it  must  be  in  the  possession  which  he  alleges  that 
Lydecker  and  his  children  always  enjoyed  of  this  property  up  to 
the  time  they  sold  it  to  the  complainant.  But  this  charge  of 
possession  is  distinctly  denied  in  the  answer ;  not  only  so,  but  it 
is  expressly  asserted  that  Chapel  gave  up  the  possession  to  the  de- 
fendant, and  that  after  that  no  person  possessed  it  except  for  a 


OCTOBER  TERM,  1831.  485 

Quackenbush  v.  Van  Riper. 


short  time,  when  one  Waite  used  it,  paying  or  agreeing  to  pay  rent 
to  Lydecker  and  the  defendant  equally.  I  think,  therefore,  that 
although  the  charge  of  the  payment  of  the  five  pounds  is  not  fully 
answered,  yet,  as  the  complainant  has  not  shown  himself  entitled 
to  claim  the  equity  growing  out  of  that  transaction,  it  will-not  stand 
in  the  way  of  dissolving  the  injunction. 

In  the  second  place,  it  is  insisted  that  the  defendant  has  not 
fully  answered  the  charge  respecting  the  agreement  between 
himself  and  the  complainant,  as  set  forth  in  the  bill,  viz:  that 
if  the  complainant  would  give  his  aid  and  direction  in  locating 
certain  factories,  he,  the  defendant,  was  about  erecting,  that  the 
defendant  would  make  no  further  difficulty  about  flowing  back 
the  water,  and  that  all  matters  should  be  settled.  The  defend- 
ant, in  his  answer,  denies  that  he  ever  made  any  such  bargain 
as  is  set  forth  in  the  complainant's  said  bill,  respecting  the  em- 
ployment of  the  said  complainant  to  advise  in  the  location  of  his 
said  cotton  mill  and  dam,  and  then  goes  on  to  state  what  the 
facts  actually  were.  The  charge  is  simple,  containing  one  dis- 
tinct fact.  The  answer  is  equally  simple,  and  denies  the  fact 
charged.  It  might  have  been  more  precise;  it  might  have  stated 
there  was  no  such  agreement  as  that  stated  in  the  bill,  nor  any 
other  of  the  like  nature  and  effect.  But  it  is  not  so  indefinite  as 
was  supposed  on  the  argument.  It  was  insisted  there,  that  it 
amounted  to  nothing  more  than  a  denial  that  he  made  a  bargain 
to  the  like  effect,  and  did  not  amount  to  a  denial  that  he  made 
the  bargain  charged.  I  think  otherwise  ;  and  although,  as  be- 
fore stated,  the  answer  might  have  been  more  full  and  technical, 
I  deem  it  to  be  sufficient  in  substance.  It  is  direct,  and  without 
evasion.  There  were  no  specific  charges,  requiring  a  specific 
answer,  and  therefore  the  general  answer  was  sufficient.  Cowp. 
Plead.  313. 

Again,  under  this  head  it  is  further  insisted,  that  the  answer 
is  insufficient,  because  after  denying  that  there  was  any  such 
agreement  as  charged  by  complainant,  it  charges  what  the  facts 
were.  The  mode  is  as  follows :  "  On  the  contrary,  he  expressly 
charges  the  facts  to  be,  that  the  said  stream,"  &c.  It  was  con- 
tended that  this  was  not  swearing  to  the  matters  charged,  but 
only  to  the  fact  of  the  charge;  or  in  other  words,  that  the  party 


486  CASES  IN  CHANCERY. 

Quackenbush  v.  Van  Riper. 

by  that  mode  of  answer,  does  not  swear  that  the  facts  are  so, 
but  only  that  he  charges  them  to  be  so.  I  do  not  see  it  in  that 
light.  If  a  man  in  his  answer  charge  certain  facts  or  matters 
to  exist,  on  which  he  intends  to  rely  for  his  defence,  and  swears 
to  the  answer  in  the  ordinary  form,  he  swears  to  the  truth  of 
the  facts,  and  not  to  the  fact  of  the  charge ;  and  if  the  facts  as 
stated  or  charged  are  material,  and  not  true,  perjury  may  be  as- 
signed upon  it. 

In  the  third  place,  it  is  insisted,  that  the  charge  in  the  bill, 
that  the  defendant  is  but  a  mortgagee  in  possession,  and  the 
facts  connected  therewith,  are  not  fully  denied  by  the  an- 
swer. 

The  bill  and  answer  are  both  very  diffuse  on  this  part  of  the 
case.  The  bill  first  charges  that  the  defendant  is  not  a  tenant 
in  fee,  but  only,  in  equity,  a  mortgagee  in  possession,  and  that 
it  was  fully  understood  that  the  deed  should  be  considered  as  a 
mortgage.  To  this  the  defendant  answers,  and  denies  that  he 
is  a  mortgagee  in  possession  of  the  said  premises,  as  set  forth  by 
the  complainant  in  his  said  bill.  He  then  undertakes  to  detail 
the  facts  relating  to  the  purchase.  In  this  statement  he  says, 
that  Forshee  proposed  to  him  and  Henry  A.  Hopper  to  take  a 
deed  and  pay  off  the  incumbrances,  and  advance  him  some 
money,  and  to  give  him  some  two  or  three  years  to  refund  the 
same :  that  this  defendant  then  informed  him  that  he  never 
bought  property  in  that  way,  and  would  make  no  such  bargain 
with  him.  He  states  further,  that  at  the  time  the  conveyance 
was  made,  there  was  no  right  of  redemption  reserved,  but  on 
the  contrary  that  he  refused  to  give  any  such  right.  This  I 
consider  to  be  a  sufficient  denial  of  the  charge.  It  is  then  fur- 
ther charged,  with  more  particularity,  that  Forshee  applied  to 
the  defendant  to  assist  him,  he  being  then  embarrassed,  and 
proposed  to  give  a  mortgage  to  secure  him,  which  the  defendant 
refused  to  do  unless  Forshee  would  assume  the  payment  of  cer- 
tain moneys  due  him  from  Forshee's  son,  John  Forshee,  on  a 
bond  and  mortgage,  and  would  let  that  be  put  in  the  mortgage 
to  be  given  by  Forshee  to  the  defendant ;  and  that  thereupon 
Forshee  agreed  to  do  so.  This,  as  we  have  seen,  has  been  al- 
ready in  part  answered.  As  to  that  part  of  the  charge  relating 


OCTOBER  TERM,  1831.  487 

Quackenbush  v.  Van  Riper. 

to  John  Forshee's  bond  and  mortgage,  the  defendant  answers  ex- 
plicitly, and  denies  that  that  debt  formed  any  part  of  the  conside- 
ration of  the  purchase  ;  and  he  denies  that  anything  was  then  said, 
to  his  knowledge,  about  the  debt  of  John  Forshee. 

The  bill  further  charges,  that  Forshee  and  wife  at  first  objected 
to  giving  an  absolute  deed,  but  being  threatened  with  suit  by  the 
defendant,  he  finally,  though  reluctantly,  agreed  to  execute  the 
deed,  but  upon  the  terms  and  conditions  before  mentioned.  To 
this  the  defendant  answers,  and  denies  that  he  ever  threatened  to 
prosecute  the  said  Forshee,  or  used  any  other  means  to  induce  him 
to  sell  the  farm.  It  is  then  charged,  that  for  two  years  and  up- 
wards Forshee  continued  to  use  and  enjoy  the  property  as  his  own, 
and  received  money  from  John  A.  Boyd,  esq.,  or  some  other  per- 
son, towards  paying  the  debt  and  interest  due  him.  To  this 
defendant  says,  that  Forshee  occupied  the  farm,  but  agreed  to  pay 
rent :  how  much  he  was  to  pay  the  first  year  he  does  not  recollect : 
that  at  the  expiration  of  the  first  year  he  made  a  specific  agreement 
with  defendant  for  another  year,  and  agreed  to  pay  for  the 
whole  time  two  hundred  and  sixty-two  dollars  and  fifty-cents,  and 
to  do  certain  repairs,  and  deliver  possession  on  the  first  of  April, 
1820 ;  and  that  he  then  voluntarily  delivered  them  up  :  and  he 
expressly  denies  that  he  ever  received  from  John  A.  Boyd,  or  any 
other  person  or  persons,  any  money  which  he  retained  on  account 
of  interest  due  from  the  said  Forshee,  or  which  he  ought  to  have 
credited  thereon. 

Upon  looking  very  carefully  into  the  bill  and  answer,  I  am  of 
opinion  that  the  answer,  as  to  these  matters,  is  sufficient,  and 
that  the  complainant's  equity  is  denied.  The  answer  might 
have  been  differently  shaped,  but  it  is  not  always  easy  to  frame 
one  so  as  to  be  above  the  reach  of  critical  exception.  By  ad- 
hering too  closely  to  the  letter  of  the  bill,  an  answer  is  often- 
times obnoxious  to  merited  reproach.  By  taking  what  may  be 
considered  the  spirit  or  substance  of  the  bill,  the  precise  point  is 
sometimes  evaded.  In  the  one  before  me,  I  have  not  discovered 
any  attempt  at  concealment  or  evasion  ;  and  as  to  the  principal 
matters  on  which  the  complainant's  equity  must  rest,  I  consider  it 
sufficiently  full. 

Lastly,  the  complainant's  charge  that  Forshee  released  to  him 


488  CASES  IN  CHANCERY. 

Quackenbush  v.  Van  Kiper. 

his  equity  of  redemption ;  and  it  is  objected  that  the  defendant 
has  not  denied  it.  This  is  not  denied ;  on  the  contrary  it  is  ad- 
mitted ;  but  it  cannot  influence  the  decision  of  this  question.  As 
the  case  now  stands  it  is  totally  immaterial,  and  no  equity  <an 
grow  out  of  it. 

Let  the  injunction  be  dissolved. 


CASES    DECIDED 

IN   THE 

COURT   OF  CHANCERY 

OF  THE  ' 

STATE    OF    NEW-JERSEY, 

JANUARY  TEEM,  1832. 


REBECCA  BULLOCK  v.  BENJAMIN  ZILLEY,  SURVIVING  EXECU- 
TOR OF  JOHN  BUTCHER,  DECEASED,  AND  OTHERS. 


John  Butcher,  the  testator,  directed  all  his  property  to  be  sold,  and  vested  the 
proceeds,  after  payment  of  debts,  in  his  executors  as  trustees;  directing 
them  to  divide  it  into  two  equal  parts.  One  part  or  moiety  he  orders 
them  to  place  at  interest,  and  pay  the  interest  arising  annually  to  his  daugh- 
ter Elizabeth,  during  life,  and  if  she  should  die  without  leaving  a  child  or 
children  living,  then  to  pay  the  interest,  annually,  to  the  support  and  main- 
tenance of  his  nephew  Thomas  Bullock,  and  Rebecca  his  wife,  and  their  chil- 
dren. The  other  moiety  or  half  part  he  directs  his  executors  to  pay,  in 
their  discretion,  to  the  suppoYt  and  maintenance  of  his  nephew  Thomas  Bul- 
lock and  his  family;  that  is  to  say,  John  B.  Bullock  and  all  the  children 
born  to  the  said  Thomas.  After  the  testator's  death,  in  1821,  the  executors 
accounted  before  the  orphan's  court,  and  acknowledged  a  balance  of  eight 
thousand  four  hundred  and  sixty-eight  dollars  and  twenty  cents  in  their 
hands.  In  1826  the  testator's  daughter  Elizabeth  died,  without  issue.  In  1829 
Rebecca  Bullock  was  divorced  from  her  husband  Thomas  Bullock,  by  act  of 
the  legislature ;  after  which  the  executors  refused  payment  to  her.  Upon 
demurrer  to  a  bill  filed  by  her  against  the  executors,  for  support  out  of  the 
interest  of  the  first  moiety  ; — HELD,  that  from  her  being  distinctly  named  in 
the  first  bequest,  as  one  of  the  objects  of  the  testator's  bounty,  and  the  en- 
tire difference  in  the  language  used  by  testator  in  that  and  the  bequest  of  the 
other  moiety ;  the  testator  intended  that  Rebecca,  the  wife  of  Thomas  Bul- 
lock, should  have  a  personal  and  individual  interest  in  this  bequest,  and  not 
simply  an  interest  as  the  wife  of  Thomas  Bullock  or  a  member  of  his  family. 

It  is  the  same  as  though  the  will  had  said,  the  interest  should  be  paid  annually 
to  Thomas  Bullock,  and  Rebecca  Bullock,  and  their  children.  Even  during 

489 


490  CASES  IX  CHANCERY. 

Bullock  v.  Zilley  et  al. 

the  coverture  the  complainant  had  a  vested  beneficial  interest  in  the  annuity, 
which  could  have  been  enforced  against  her  husband. 

The  words  "  his  wife,"  as  applied  to  the  complainant  in  the  first  bequest,  are 
to  be  taken  as  mere  words  of  description,  of  the  person  intended  to  take, 
not  that  she  must  necessarily  be  the  wife  of  Thomas  Bullock,  and  take 
only  in  that  capacity:  and  her  interest  in  the  bequest  is  not  affected  by  the 
divorce. 

The  following  facts  are  sufficient  for  the  proper  understanding 
of  the  question  raised  by  this  demurrer. 

In  February,  1818,  John  Butcher,  late  of  Burlingfon  county, 
made  his  last  will  and  testament ;  in  which  he  directed  all  his  prop- 
erty, real  and  personal,  to  be  sold  by  his  executors,  and  the  proceeds, 
after  paying  debts,  he  vests  in  their  hands  as  trustees,  directing 
them  to  divide  it  into  two  equal  parts. 

One  part  or  moiety  he  orders  placed  out  on  interest,  and  to 
pay  the  interest  annually  arising  to  his  daughter  Elizabeth,  dur- 
ing her  natural  life,  that  she  may  have  a  comfortable  support ; 
and  if  his  said  daugher  should  marry  and  have  a  child  or  chil- 
,  dren  living  at  her  death,  then  the  principal  to  be  paid  to  them. 
If  she  should  die  without  such  child  or  children  living  at  her 
death,  then  his  order  is  that  the  principal  sum  shall  be  kept  out 
at  interest,  and  the  interest  paid  annually  to  the  support  and  main- 
tenance of  his  nephew  Thomas  Bitflock,  and  Rebecca  his  wife,  and 
their  children,  including  John  B.  Bullock,  who  was  born  before 
marriage. 

The  other  moiety  or  half  part  he  directs  his  executors  to  pay, 
in  their  discretion,  to  the  support  and  maintenance  of  his  nephew 
Thomas  Bullock  and  his  family;  that  is  to  say,  John  B.  Bullock 
and  all  the  other  children  that  may  be  born  to  the  said  Thomas 
during  his  natural  life. 

In  case  Thomas  should  die  leaving  no  lawful  issue  living,  and 
John  B.  Bullock  should  be  alive,  then  the  whole  of  the  principal 
and  the  unexpended  interest  shall  be  paid  to  him.  And  if  John 
B.  Bullock  should  die  in  the  life-time  of  the  testator,  and  the  testa- 
tor should  die  without  lawful  issue,  then  the  whole  of  the  estate  to 
be  divided  equally  among  his  three  brothers. 

The  testator  died  leaving  John  B.  Bullock  and  five  other  chil- 
dren alive.  Thomas  Butcher  and  Benjamin  Zilley  proved  the 


JANUARY  TERM,  1832.  491 

Bullock  v.  Zilley  et  al. 

will  as  executors.  In  1821  they  accounted  in  the  orphan's  court, 
and  acknowledged  to  be  in  their  hands  for  distribution  the  sum  of 
eight  thousand  four  hundred  and  sixty-eight  dollars  and  twenty 
cents. 

On  the  llth  day  of  February,  1829,  the  complainant  was  di- 
vorced from  her  husband  by  an  act  of  the  legislature  of  this  state, 
and  the  marriage  contract  was  thereby  declared  to  be  dissolved. 
In  1826,  Elizabeth,  the  daughter  of  the  testator,  to  whom  the  use 
of  the  first  moiety  was  given,  died  without  leaving  a  child  or 
children  living. 

The  bill  then  charges,  that  since  the  granting  of  the  divorce,  the 
executors  refuse  to  pay  to  the  complainant  any  part  of  the  interest 
accruing  on  the  first  moiety  of  the  said  balance  so  acknowledged  by 
the  executors  to  be  in  their  hands ;  and  it  prays  that  she  may  be 
allowed  such  portion  of  said  interest  as  may  be  sufficient  for  her 
maintenance,  or  so  much  as  the  court  may  direct. 

No  claim  is  made  for  any  portion  of  the  second  moiety,  which  is 
directed  to  be  paid  at  the  discretion  of  the  executors  for  the  sup- 
port of  Thomas  Bullock  and  his  family. 

The  defendants  have  demurred  to  this  bill,  and  assign  as  cause 
of  demurrer,  that  it  appears  on  the  face  of  the  bill  that  the  com- 
plainant has  been  divorced  from  her  husband  and  the  marriage 
contract  dissolved  ;  and  that  by  the  true  and  lawful  construction 
of  the  will  of  the  said  John  Butcher,  deceased,  she  can  receive 
benefit  under  it  only  in  the  character  of  wife  of  Thomas  Bul- 
lock;  and  that,  having  by  her  own  showing  and  admission  ceased 
to  be  such  wife,  she  is  not  entitled  to  the  relief  prayed  for  in  her 
said  bill. 

G.  D.  Wall,  for  the  complainant ; 
E.  B.  Cannon,  for  the  defendants. 

THE  CHANCELLOR.  As  the  complainant  in  her  bill  does  not 
call  in  question  the  act  of  the  legislature  dissolving  the  marriage 
contract,  but  admits  its  validity,  and  comes  into  court  claiming 
rights  notwithstanding  she  is  no  longer  the  wife  of  Thomas  Bul- 
lock, the  only  question  that  can  be  raised  is  this:  whether  the 


492  CASES  IN  CHANCERY. 

Bullock  v.  Zilley  et  al. 

words  "  his  wife,"  as  applied  to  the  complainant  in  the  bequest, 
are  to  be  taken  as  mere  words  of  description  :  if  so  taken,  the  rights 
of  the  complainant  are  not  affected  by  the  divorce  ;  but  if  the  per- 
son taking  must  necessarily  be  the  wife  of  Thomas  Bullock,  and 
take  in  that  capacity,  then  her  interest  is  at  an  end. 

In  cases  of  this  description,  the  intention  of  the  testator  must 
govern  :  the  difficulty  is  to  arrive  at  it  with  a  sufficient  degree  of 
certainty  to  satisfy  the  mind.  From  the  best  consideration  I  have 
been  able  to  give  this  case,  I  incline  to  the  opinion  that  the  testator 
intended  that  Rebecca,  the  wife  of  Thomas  Bullock,  should  have  a 
personal  and  individual  interest  in  this  bequest,  and  not  simply  an 
interest  in  it  as  the  wife  of  Thomas  Bullock,  or  a  member  of  the 
family.  And  I  draw  this  conclusion  from  the  following  circum- 
stances. 

1.  She  is  mentioned  by  name.     The  interest  is  to  be  paid  annually 
to  the  support,  not  of  Thomas  Bullock  and  his  family,  or  Thomas 
Bullock  and  his  wife  and  family,  but  of  Thomas  Bullock,  and 
Rebecca  his   wife,   and  their  children.    'Had   Rebecca  died,   and 
Thomas  Bullock  married  another  wife,  she  could  have  taken  no 
personal  interest  under  this  will  either  as  wife  or  as  one  of  the  family. 
The  persons  to  be  benefitted  by   the  bounty  of  the  testator  are 
distinctly  named;  and,  as  it  regards  the  present  complainant,  it  is 
the  same  as  though  the  will  had  said,  the  interest  should  be  paid 
annually  to   Thomas  Bullock,  and    Rebecca  Bullock,  and   their 
children.     Even  during  the  coverture,  the  complainant  had  a  vested 
beneficial  interest  in  the  annuity,  which  could  have  been  enforced 
against  her  husband. 

2.  If  the  defendants'  construction  be  true,  that  the  complainant 
can  only  take  as  the  wife  of  Thomas  Bullock,  then  if  it  had  so 
happened  that  Thomas  Bullock  had  died  in  the  life-time  of  the  tes- 
tator, his  interest  would  have  lapsed,  and  the  complainant,  though 
a  widow,  could  have  taken  nothing,  she  not  being  at  the  time  the 
wife  of  Thomas  Bullock,  the  legatee.     It  can  scarcely  be  imagined 
that  this  was  the  intention  of  the  testator. 

3.  And  again,  if  the  defendants'  construction  be  the  true  one, 
then  in  case  the  husband,  Thomas  Bullock,  had  died  at  any  time 
after  the  decease  of  the  testator,  the  complainant's  interest  would 
have  ceased,  she    being  no  longer   his  wife,  in  the  language  of 


JANUARY  TERM,  1832.  493 

Bullock  v.  Zilley  et  al. 

the  will.  No  good  reason  can  be  assigned  for'  such  a  construc- 
tion. And  that  it  would  operate  unjustly  and  with  hardship,  by 
taking  away  support  and  maintenance  at  a  time  when  it  would 
be  most  needed,  is  a  sufficient  inducement  for  the  court  to  lean 
against  it,  and  favor  one  more  in  accordance  with  the  charitable 
intentions  of  the  testator. 

4.  Another  circumstance,  which  induces  a  conclusion  favorable 
to  the  claim  of  the  complainant,  is  this;  that  the  testator,  in 
directing  the  manner  in  which  the  other  moiety  or  half  part  of  the 
fund  is  to  be  appropriated,  makes  use  of  language  entirely  differ- 
ent from  that  used  in  relation  to  the  first  moiety,  and  excludes  the 
complainant  altogether  from  any  direct  interest  in  it.  That  moiety 
he  directs  his  executors  to  pay,  in  their  discretion,  to  the  support 
and  maintenance  of  his  nephew  Thomas  Bullock  and  his  family  ; 
that  is  to  say,  John  B.  Bullock  and  all  the  other  children  that  may 
be  born  to  the  said  Thomas  during  his  natural  life.  The  fact  that 
the  interest  in  this  last  moiety  is  confined  expressly  and  guardedly 
to  the  use  of  Thomas  Bullock  and  his  children,  shows  that  the  dis- 
tinction was  made  understandingly  ;  and  is  persuasive  evidence 
that  the  testator  intended,  by  constituting  the  complainant  one  of 
the  objects  of  his  bounty  as  to  the  first  moiety,  that  she  should  have 
a  direct  and  personal  interest,  which  should  be  appropriated  to  her 
personal  support.  I  can  see  no  other  reason  for  the  difference 
made  in  the  disposition  of  the  two  moieties^ 

Upon  what  grounds  the  parties  were  divorced,  or  which  com- 
plained of  the  other,  I  am  not  informed.  The  bill  simply  alleges 
the  fact  of  the  divorce.  The  demurrer  admits  it  as  stated,  and 
the  court  can  look  no  further  than  the  pleadings.  I  am  not  aware, 
however,  that  any  development  of  facts  can  change  the  legal  rights 
of  the  parties. 

Considering  the  case,  then,  simply  upon  the  intention  of  the  tes- 
tator, as  collected  from  the  will  itself,  my  conclusion  is,  for  the 
reasons  above  stated,  that  the  complainant  is  entitled  to  relief,  and 
that  the  demurrer  be  overruled,  with  costs. 

Demurrer  overruled. 


494  CASES  IX  CHANCERY. 


Smith  v.  Axtell  et  al. 


JOHN  SMITH,  ADMINISTRATOR  OF  SILAS  AXTELL,  DECEASED, 
v.. SAMUEL  L.  AXTELL,  HENRY  AXTELL,  AND  CHARLES 
ROFF  AND  PHEBE  HIS  WIFE. 


The  bill  should  be  framed  to  meet  the  case,  so  that  the  aUegata  and  the 

may  agree,  with  reasonable   certainty.      It  is  as  important  that  this  rule 
should  be  adhered  to  in  this  court  as  in  a  court  of  law. 

Where  the  bill  goes  on  an  original  agreement  in  writing,  and  does  not  mention 
the  loss  of  it,  so  as  to  admit  of  any  evidence  in  lieu  of  it;  parol  evidence  of 
its  contents,  or  a  paper  purporting  to  be  a  copy  of  it,  is  not  sufficient :  but. 
the  pleadings  may  be  amended  to  get  at  the  merit*  of  the  case. 

If  the  original  agreement  has  been  lost,  and  due  diligence  has  been  used  to  re- 
cover it,  but  without  effect;  a  copy  may  be  received,  or  if  there  be  no  copy 
the  party  may  resort  to  parol  proof  of  the  contents,  * 

The  complainant  is  competent  to  prove  the  loss. 

But  his  testifying,  that  the  paper  was  in  his  possession  some  time,  and  he  left  it 
with  the  arbitrators,  (to  whom  the  matter  had  been  referred,)  since  which  he 
has  not  seen  it:  that  he  has  often  searched  for  it  among  his  own  papers,  the 
papers  of  his  decedent,  and  wherever  he  supposed  it  probable  it  might  be 
found,  but  could  not  find  it,  and  believes  it  lost  or  destroyed ;  and  one  of  the 
arbitrators  stating,  that  the  original  agreement  was  before  the  arbitrators  at 
their  first  meeting,  that  he  has  seen  it  since,  but  does  not  know  what  has  be- 
come of  it,  (the  other  two  arbitrators  not  having  been  examined,  or  called 
on,) — is  too -indefinite  to  show  the  loss  of  the  original  agreement,  and  war- 
rant the  introduction  of  secondary  evidence. 

Where,  after  administration  granted,  it  was  found  that  the  personal  estate  was 
insufficient  to  pay  debts;  and  the  elder  children,  having  been  advanced  in 
money  and  goods,  agreed  with  the  administrators,  in  writing,  to  account  for 
the  advancement  made  to  them,  to  save  the  real  estate  from  being  sold  for 
the  payment  of  debts,  and  to  do  justice  to  the  younger  children  who  had  re- 
ceived nothing  from  their  father ;  such  an  agreement  is  equitable  in  itself, 
and  should  be  carried  into  execution. 

And  the  fact,  that  after  the  agreement,  the  authority  of  the  administrators  who 
mad-  it  had  been  revoked,  and  administration  granted  to  the  present  com- 
plainant, does  not  present  any  obstacle  to  the  execution  of  the  agreement. 


Silas  Axtell,  late  of  Morris  county,  died  in  1820,  intestate, 
leaving  a  widow  and  several  children,  viz.  Samuel,  Henry,  Am- 
zi,  Phebe  wife  of  Charles  Roff,  John,  Jacob,  and  Jonathan — 
the  two  last  being  minors.  He  also  left  three  grand-children,  the 
offspring  of  his  daughter  Mary,  late  the  wife  of  Daniel  Thomp- 
son, 3d.  Letters  of  administration  were  granted  to  Henry  Ax- 


JANUARY  TERM,  1832.  495 


Smith  v.  Axtell  et  al. 


tell,  John  Axtell  and  Charles  Roff.  The  deceased  left  a  small 
"personal  estate,  and  a  farm  in  Mendham  township  of  one  hun- 
dred and  sixty  acres.  The  bill  filed  in  this  case  sets  forth,  that 
the  personal  property  was  altogether  insufficient  to  pay  the  debts 
of  the  decedent;  and  that  the  older  children,  having  been  ad- 
vanced in  money  and  goods,  agreed  to  account  for  the  advance- 
ments thus  made,  and  thereby  not  only  save  the  real  estate  from 
being  sold  for  the  payment  of  debts,  but  do  justice  to  the  younger 
children,  who  had  received  nothing  from  their  father.  In  pursu- 
ance of  this  agreement,  Henry  Axtell,  Charles  Roff,  and  John 
Axtell,  the  administrators,  and  Samuel  L.  Axtell,  the  oldest  son, 
entered  into  an  article  of  agreement  in  writing,  whereby  they 
all  agreed  to  make  a  settlement  as  heirs  with  the  administrators ; 

D  ' 

and  if  upon  such  settlement  for  money  or  property  advanced  to 
either  of  them,  they  or  any  of  them  should  fall  in  debt,  they 
pledged  their  respective  shares  of  the  realty  to  the  administrators 
to  secure  the  payment  of  the  same,  if  it  should  be  found  neces- 
sary to  pay  the  just  debts  of  the  deceased,  or  to  make  the  other 
heirs  equal.  Under  this  agreement,  Samuel  settled  with  the  ad- 
ministrators on  the  28th  February,  1824,  (being  the  same  day  on 
which  the  agreement  was  made,)  and  acknowledged  a  balance 
due  the  administrators  of  one  hundred  and  forty-four  dollars  and 
eighty-six  cents.  After  this,  the  letters  of  administration  that  had 
been  granted  to  Henry  Axtell,  John  Axtell,  and  Charles  Roff, 
were  revoked,  and  administration  was  by  consent  committed  to 
John  Smith,  the  present  complainant;  and  he  alleges,  that  on 
taking  an  inventory  there  was  a  deficiency  of  personal  assets  of 
nearly  seven  hundred  dollars,  exclusive  of  the  debts  due  from 
the  children.  The  claim  against  Henry  Axtell,  under  the  afore- 
said agreement,  was  referred  to  arbitrators,  who  awarded  that  he 
should  pay  the  administrator  four  hundred  dollars.  Daniel 
Thompson,  3d,  submitted  the  claim  against  his  deceased  wife  to 
the  same  arbitrators,  who  reported  that  there  was  due  from  him 
to  the  administrator  the  sum  of  one  hundred  and  ninety-four  dol- 
lars and  fifty-eight  cents.  The  bill  then  charges,  that  Charles 
Roff,  although  his  wife  had  had  considerable  advances  from  her 
father,  after  delaying  the  complainant  on  various  pretences  from 
time  to  time,  at  length  refused  to  settle  or  make  any  allowance 


496  CASES  IN  CHANCERY. 

Smith  v.  Axtell  et  al. 

whatever;  and  that  the  other  heirs  have  also  refused  to  pay  the 
amounts  so  found  due  from  them  as  aforesaid ;  and  then  prays 
that  the  said  agreement  may  be  enforced,  and  the  defendants 
come  to  an  account  for  the  sums  due  respectively,  and  be  decreed 
to  pay  the  same.  The  bill  was  filed  in  July,  1825.  None  of 
the  defendants  having  answered,  of  pleaded  in  any  way,  the 
complainant  in  July,  3827,  obtained  an  order  to  take  depositions 
and  proofs  in  support  of  his  bill.  Under  this  order,  papers  and 
documents  were  produced,  and  a  number  of  witnesses  examined  ; 
after  which  the  cause  was  set  down  for  argument  ex  parte ;  and 
in  October,  1829,  an  order  was  made  referring  it  to  a  master  to 
take  an  account  against  Charles  RofF,  and  ascertain  the  amount 
of  his  indebtedness  to  the  administrator,  which  Indebtedness  is 
said  in  the  order  satisfactorily  to  appear.  After  this,  to  wit,  in 
October,  1830,  Charles  Roff  and  wife  filed  their  answer  to  the 
bil^  it  is  presumed  with  the  complainant's  consent.  Their  answer, 
so  far  as  it  is  necessary  to  advert  to  it  at  this  time,  states  that  Silas 
Axtell,  deceased,  gave  to  his  daughter,  the  wife  of  Charles  RofF, 
after  her  marriage,  sundry  articles  of  personal  property,  as  an 
outfit,  amounting  to,  perhaps,  one  hundred  and  fifty  dollars ; 
but  claims  that  it  was  an  absolute  gift  and  not  an  advancement, 
and  that  they  are  not  bound  to  account  for  the  same,  there  being 
no  charge  made  in  the  account-book  of  the  intestate.  Charles 
Roff  denies  that  there  was  such  an  agreement  as  is  set  out  in  the 
bill,  and  says  that  the  instrument  entered  into  was  not  under 
seal,  and  was  simply  to  this  effect,  that  the  administrators  indi- 
vidually would  settle  all  demands  that  the  estate  had  upon  each, 
upon  the  same  principles  that  Samuel  Axtell  would  settle  upon  ; 
which  was,  that  he  should  be  responsible  for  any  demand  that 
the  estate  might  lawfully  have  upon  him,  and  which  might  be 
made  to  appear  by  the  books  of  account  of  the  -said  deceased ; 
and  that  it  was  upon  that  principle  that  Samuel  settled.  They 
further  contend,  that  as  the  complainant  was  no  party  to  the 
agreement,  he  has  no  right  to  proceed  upon  it,  or  take  advantage 
of  it  in  any  way  ;  or  if  he  has,  that  he  should  proceed  at  law. 
They  also  allege  that  the  complainant,  since  the  filing  of  the  bill, 
has  sold  part  of  the  real  estate  under  an  order  of  the  orphan's 
court,  and  has  rendered  no  account  of  the  same:  they  are 


JANUARY  TERM,  1832.  497 


Smith  v.  Axtell  et  al. 


therefore  unable  to  say,  but  they  confidently  think,  that  the  personal 
assets,  together  with  the  proceeds  of  such  sale,  are  sufficient  to  pay 
all  the  debts. 

Th.  Frdinghuysen,  for  complainant; 
I.  H.  Williamson,  for  defendants. 

THE  CHANCELLOR.  There  does  not  appear  to  have  been  any 
additional  testimony  taken  after  filing  this  answer,  and  some  impor- 
tant facts  are  not  adverted  to  at  all  iu  the  testimony  taken  ex  parte 
under  the  original  order,  and  which  has  been  used  by  both  parties 
on  the  argument. of  the  cause.  The  case  comes  up  under  very 
embarrassing  circumstances,  and  in  such  a  way  as  to  render  it  im- 
possible for  the  court  to  make  a  final  disposition  of  it,  and  at  the 
same  time  satisfy  itself,  or  do  justice  between  the  parties.  There 
are,  however,  one  or  two  questions  which  may  be  as  well  disposed 
of  at  this  as  any  other  stage  of  the  cause. 

The  first  is,  whether  the  agreement  set  out  in  the  complainant's 
bill,  and  upon  which  his  suit  is  founded,  has  been  sufficiently  and 
legally  proved.  It  is  contended  by  the  defendants  that  it  has 
not. 

The  bill  mentions  a  written  agreement,  of  the  date  of  February 
28th,  1824 ;  and  although  it  would  seem  as  if  it  was  intended 
to  give  only  the  substance  and  effect,  and  not  the  tenor  of  it,  it 
is  nevertheless  set  out  in  hcee  verba :  "  This  article  of  agreement,, 
made,"  &c.  It  turns  out  from  the  evidence,  that  the  original- 
article  was  not  produced  before  the  master,  but  only  a  paper  pur- 
porting to  be  a  copy  of  it ;  and  that  upon  the  ground  of  the  loss 
of  the  instrument,  parol  evidence  of  its  contents,  and  also  a  pa- 
per purporting  to  be  a  copy,  was  received.  It  is  contended,  in 
the  first  place,  that  parol  evidence  of  the  contents  of  the  paper, 
or  anv  other  secondary  evidence,  cannot  be  received,  inasmuch' 
as  the  bill  goes  upon  the  original  agreement,  and  does  not  allege 
the  loss  of  it,  so  as  to  admit  of  any  evidence  in  lieu  of  the  ori- 
ginal article.  This  is  technically  correct.  The  bill  should  be 
framed  to  meet  the  case,  so  that  the  allegata  and  the  probata 
may  agree,  with  reasonable  certainty.  And  it  is  as  important 

2i 


498  CASES  IN  CHANCERY. 

Smith  v.  Axtell  et  al. 

that  this  rule  should  be  adhered  to  substantially  in  this  court,  as  in 
a  court  of  law.  I  am  not,  however,  inclined  to  say  that  for  this 
reason  the  testimony  must  be  rejected,  and  the  party  turned  out  of 
court ;  for  the  pleadings  may  be  amended,  if  necessary,  and  the 
object  of  the  parties,  as  I  understand  it,  is  to  get  at  the  merits  of 
the  case. 

Passing  by  this  formal  objection,  the  question  before  the  court 
is,  whether  a  proper  foundation  has  been  laid  for  the  admission  of 
secondary  evidence.  The  allegation  is,  that  the  original  is  lost. 
If  this  be  true,  and  due  diligence  has  been  used  to  recover  it,  but 
without  effect,  a  copy  may  be  received  ;  or  if  there  be  no  copy, 
the  party  may  resort  to  parol  proof  of  the  contents  of  the  instru- 
ment. It  is  agreed  on  all  hands  that  there  was  an  original  agree- 
ment relating  to  the  subject  matter  of  this  controversy.  It  was 
entered  into  in  February,  1824,  by  Henry  Axtell,  Charles  Roff, 
John  Axtell,  and  Samuel  L.  Axtell.  It  was  before  the  arbitra- 
tors, as  appears  by  the  testimony  of  Jesse  Upson,  esquire,  and 
was  not  disputed  by  any  of  the  parties.  The  complainant  is 
called  to  prove  the  loss,  and  for  this  purpose  he  is  competent.  He 
says,  the  paper  was  in  his  possession  a  considerable  time,  and 
he  left  it  with  the  arbitrators  when  they  first  met,  since  which 
he  has  not  seen  it.  He  has  often  searched  for  it,  but  could  not 
find  it.  He  has  searched  for  it  among  his  own  papers,  and 
among  the  papers  of  the  deceased,  and  wherever  he  supposed  it 
probable  it  might  be  found,  but  could  not  find  it,  and  believes  it 
lost  or  destroyed.  Jesse  Upson,  one  of  the  arbitrators,  states  that 
the  original  paper  was  before  them,  but  he  does  not  know  what 
has  become  of  it.  Besides  this,  I  do  not  discover  any  evidence 
of  the  loss  of  the  paper;  and  although  in  this  case  I  should  be 
inclined  rather  to  relax  than  to  adhere  strictly  to  the  rule,  I  feel 
satisfied  that  this  is  altogether  too  indefinite  to  warrant  the  intro- 
duction of  parol  or  secondary  evidence.  The  complainant's  tes- 
tifying that  he  has  searched  for  it  among  his  papers,  and  the 
papers  of  the  deceased,  is  not  sufficient.  He  had  before  stated 
that  he  left  it  with  the  arbitrators,  and  had  not  seen  it  since. 
The  search  he  made  must  have  been  merely  for  the  sake  of  form, 
and  not  with  any  view  of  finding  the  instrument.  It  was  left 
with  the  arbitrators,  and  it  is  remarkable  that  not  one  of  them 


JANUARY  TERM,  1832.  499 


Smith  v'.  Axtell  et  al. 


has  been  called  on  with  the  view  of  ascertaining  whether  it  was 
in  their  possession.  Jesse  Upson,  it  is  true,  was  examined  as  a 
witness.  He  says  he  has  never  seen  the  original  paper  or  agree- 
ment since  the  meeting  of  the  arbitrators,  and  does  not  know 
what  has  become  of  it.  Now  this  may  be,  and  yet  the  paper  be 
in  his  possession.  He  does  not  say  that  he  has  ever  been  called 
on  to  examine  his  papers,  or  that  he  has  ever  searched  for  it. 
The  fact  that  he-  has  not  seen  it,  or  does  not  know  what  has 
become  of  it,  is  no  proof  that  it  is  not  in  his  possession.  The 
other  two  arbitrators  with  whom  the  paper  was  left,  and  in  whose 
hands  it  is  last  traced,  were  not  examined,  nor  does  it  appear  that 
they  have  ever  been  called  on,  or  that  any  inquiry  has  been  made 
of  them  respecting  it.  It  was  attempted  to  be  shown  on  the  ar- 
gument, that  Jesse  Upson  was  the  active  arbitrator,  or  the  busi- 
ness man  among  them  ;  and  it  was  argued,  that  if  he  had  not 
the  instrument,  and  it  was  scarcely  supposable  that  either  of  the 
other  arbitrators  had.  This  is  argument  merely ;  for  it  does  not 
appear  that  Judge  Upson  was  the  active  man ;  we  may  presume 
so  from  our  private  knowledge  of  his  business  habits  and  of  the 
general  estimation  in  which  he  was  held,  but  that  furnishes  uo 
ground  for  a  judicial  opinion.  It  it  shown,  however,  that  even 
as  it  regards  Judge  Upson,  the  evidence  is  insufficient.  It  does 
not  prove  that  the  paper  is  not  in  his  possession,  and  therefore 
the  argument  itself  is  unsound.  Nor  is  the  case  aided  by  the 
complainant's  stating  he  had  searched  for  it  wherever  he  suppos- 
ed it  probable  it  might  be  found.  He  should  have  stated  where 
he  searched,  that  the  court  might  judge  whether  it  was  in  good 
faith.  If  such  general  allegations  were  admitted,  it  would  super- 
cede  the  necessity  of  pointing  out  any  particular  places,  and  a 
salutary  rule  of  law  would  be  easily  evaded,  if  not  wholly  de- 
stroyed. 

The  conclusion  is,  that  there  is  no  sufficient  foundation  for  ad- 
mitting secondary  evidence,  whether  it  be  a  copy  or  parol.  In 
this  case,  the  paper  produced  as  a  copy  cannot  be  considered  as 
such.  It  has  not  been  compared.  The  witnesses  who  state  it  to 
be  a  copy,  speak  only  from  their  recollection  of  the  original,  and 
not  from  any  actual  knowledge.  But  if  it  were  an  actual  com- 
pared copy,  it  would  not  alter  the  case.  It  would  be  secondary 


500  CASES  IN  CHANCERY. 

Smith  v.  Axtell  et  al. 

evidence  still,  and  inadmissible  without  first  satisfactorily  show- 
ing the  loss  of  the  original,  which  has  not  been  done. 

Notwithstanding  this  conclusion,  I  am  unwilling  to  preclude 
the  rights  of  the  complainant  and  dismiss  his  bill.  I  incline  to 
think  he  has  equity  in  his  case,  if  it  can  be  reached.  If  the 
agreement  is  proved  to  be  such  as  is  set  out  in  the  bill,  I  see  no 
good  reason  why  it  should  not  be  enforced.  That  the  adminis- 
trators have  been  changed,  does  not  present  any  serious  difficulty 
to  my  mind.  The  object  of  the  agreement  was  to  enable  the 
administrators  to  satisfy  the  debts  and  exonerate  the  land.  It 
was  made  in  good  faith,  and  was  equitable  in  itself,  and  justice 
requires  that  it  should  be  carried  into  execution,  if  properly 
proved. 

The  court  would  recommend  that  the  parties  consent  to  the 
further  taking  of  testimony  respecting  the  loss  of  the  paper,  and 
that  the  defendants  also  produce  evidence  to  the  fact  alleged  by 
them,  that  the  administrator  has  sold  land  of  which  he  has  made 
no  account.  This  is  important  to  settle  the  rights  of  the  parties. 
This  cause  has  been  conducted  with  considerable  irregularity  and 
tardiness ;  but  as  the  course  pursued  has  been  consented  to  by 
both  parties  to  reach  a  proper  result,  and  to  have  the  cause  settled 
on  the  merits;  and  as  the  defendants  have  been  let  in  to  answer 
after  default,  and  after  testimony  taken  against  them,  the  hope  is 
indulged  that  the  course  intimated  by  the  court  will  be  adopted. 
If  it  should  not,  I  will"  listen  to  an  application  on  the  part  of  the 
complainant  for  leave  to  take  further  testimony,  and  be  inclined 
to  grant  him  such  aid  as  may  be  consistent  with  the  rules  and 
practice  of  the  court. 


JANUARY  TERM,  1S32.  501 


Mickle  v.  Rambo  et  al. 


GEORGE  MICKLE,  EXECUTOR  OF  SAMUEL  MICKLE,  DECEASED, 
V.  JOHN  RAMBO  AND  OTHERS. 


Where  A.  has  a  first  mortgage  on  two  lots,  and  B.  takes  a  second  mortgage  on  the 
first  lot  only  ;  he  may,  as  between  him  and  the  first  mortgagee,  compel  the 
satisfaction  of  the  first  mortgage  out  of  the  second  lot,  as  far  as  the  proceeds 
will  go. 

A  release,  afterwards  given,  by  the  first  mortgagee  to  the  mortgagor,  of  all  bia 
interest  in  the  second  lot,  will  not  prejudice  the  second  mortgagee,  unless  he 
assented  to  it. 

The  purchaser  of  the  equity  of  redemption  of  the  first  lot,  subject  to  both  mort- 
gages, in  order  to  redeem,  would  have  to  pay  the  whole  of  the  second  mort- 
gage covering  the  first  lot  only,  and  a  ratable  portion  of  the  first  mortgage 
on  both  lots,  according  to  the  value  of  the  two  lots. 

Upon  a  subsequent  sale  of  the  first  lot,  on  a  bill  filed  by  the  first  mortgagee,  the 
proceeds  are  to  be  applied  to  satisfy,  first,  a  ratable  portion  of  the  first  mort- 
gage, then  the  whole  of  the  second  mortgage,  and  subsequent  incumbrances 
on  the  first  lot  in  their  order. 

The  following  facts  appear  by  the  pleadings  and  evidence : — 

1.  On  the  7th  March,  1815,  Apollo  Woodward  gave  a  mortgage 
to  Samuel  Mickle  for  one  thousand  dollars,  on  two  lots  in  Glouces- 
ter county,  the  first  being  a  tavern  lot  in  Woodbury, 

2.  On  the  5th  April,  1818,  Woodward   gave   a  mortgage  to 
Joseph   Sh'inn,  for  twelve  hundred  dollars^  on  the  tavern-house 
and   lot;    which    mortgage   was    afterwards    assigned    to    James 
Cook. 

3.  On  the  26th  December,  1818,  Woodward  sold  the  equity  of 
redemption  in  the  tavern-house  and  lot  to  Marmaduke  Wood,  sub- 
ject to  the  two  mortgages. 

4.  On  the  same  26th  December,  1818,  Wood  gave  to  Woodward 
a  mortgage  on  the  same  tavern-house  and  lot  for  one  thousand  dol- 
lars. 

5.  On  the  1st  May,  1819,  Mickle,  the  first  mortgagee,  released 
to  Woodward   all    his    interest    under   the   mortgage   in    and    to 
the  second  lot  mentioned  in  his  mortgage;    which,  lot  was  after- 
wards   sold    and    conveyed    by  Woodward   to   various   purcha- 
sers. 

6.  On  the  29th  August,  1820,  Wood  gave  to  Rambo  a  mort- 


502  CASES  IN  CHANCERY. 

Mickle  v.  Kambo  et  al. 

gage  on  the  tavern-house  and  lot  for  fourteen  hundred  and  seventy- 
six  dollars  and  eleven  cents :  And, 

7.  On  the  1st  September,  1820,  Wood  executed  to  Rambo  an 
assignment  of  all  his  property,  in  trust,  for  the  benefit  of  credi- 
tors. 

Mickle,  the  executor  of  the  first  mortgagee,  has  filed  his  bill  to 
sell  the  mortgaged  premises. 

The  only  defendant  who  has  answered  is  John  Rambo.  He 
states  in  his  answer,  that  the  lot  released  by  Mickle  to  Woodward 
was  worth  twelve  hundred  dollars ;  and  that  when  he,  (Rambo,) 
took  his  mortgage,  he  did  not  know  of  the  release.  He  insists  that 
the  whole  value  of  the  released  property  must  be  deducted  from 
Mickle's  mortgage,  and  the  balance  only  be  raised  out  of  the 
tavern-house  and  lot. 

The  tavern-house  and  lot  have  been  sold,  under  an  order  of  the 
orphan's  court,  for  the  sum  of  three  thousand  seven  hundred  dol- 
lars ;  and  the  master,  pursuant  to  directions  given  him,  has  report- 
ed that  the  value  of  the  second  lot,  released  by  Mickle,  at  the  time 
of  the  release,  was  one  thousand  and  fifty  dollars,  and  that  the  rel- 
ative value  of  the  two  lots  is  as  seven  to  one ;  or,  in  other  words, 
that  the  first  mentioned  lot,  being  the  tavern-lot,  is  worth  seven 
times  as  much-  as  the  other. 

Wall,  for  complainant ; 
Armstrong,  for  defendant. 

THE  CHANCELLOR.  It  is  submitted  to  the  court  to  direct  the 
disposition  of  the  money,  and  this  must  depend  on  the  operation 
to  be  given  to  the  release. 

Mickle's  mortgage  covered  the  whole  property,  including  both 
lots.  Shinn's  mortgage  covered  the  first  lot  only.  If  the  con- 
troversy was  between  these  two  mortgagees,  on  general  princi- 
ples, and  independently  of  any  release,  Shinn  would  have  a 
right  to  compel  the  satisfaction  of  Mickle's  mortgage  out  of  the 
second  lot,  if  sufficient  to  satisfy  it ;  and  if  not,  to  have  the  pro- 
ceeds of  the  lot  appropriated  to  that  purpose,  as  far  as  they 
would  go.  Nor  would  the  release  affect  the  rights  of  Shinn  un- 


JANUARY  TERM,  1832.  503 

Mickle  v.  Eambo  ct  al. 

less  he  assented  to  it,  for  the  value  of  the  property  thus  released 
would  be  ordered  to  be  deducted  from  Mickle's  mortgage. 

But  the  controversy  is  between  other  parties ;  neither  Shinn,  nor 
«iis  assignee,  Cook,  claim  any  special  rights. 

Rambo  claims  under  Wood,  who  stood  at  the  time  he  gave 
the  mortgage  to  Rambo,  and  made  the  assignment  of  his  pro- 
perty to  him,  as  the  purchaser  of  the  tavern-house  and  lot,  sub- 
ject to  the  two  mortgages  to  Mickle  and  Shinn.  If  as  such  pur- 
chaser, he  had  sought  to  redeem  that  lot,  he  would  have  had  to 
pay  the  mortgage  to  Shinu,  and  also  a  proportion  of  Mickle's 
mortgage,  according  to  the  relative  value  of  the  two  lots.  He 
could  have  compelled  the  second  lot  to  pay  its  proportion  only, 
according  to  its  value,  and  could  have  had  no  right  in  equity  to 
throw  the  whole  burden  of  the  mortgage  on  that  part  of  the 
property. 

Such  was  the  right  of  Wood.  Rambo  claims  under  him,  and 
stands  in  his  place.  And  Mickle  having  released  his  interest  in 
the  second  lot,  the  proportion  of  his  mortgage  which  that  lot  was 
liable  to  pay,  must  be  deducted  from  the  amount  now  due  him  by 
the  report  of  the  master.  This  proportion  is  ascertained  to  be  the 
one-seventh  part. 

There  is  no  evidence  to  show  that  Shinn  was  consenting  to  the 
release,  and  therefore  his  rights,  or  those  of  his  assignees,  are  not 
affected  by  it. 

I  do  not  perceive  that  the  case  is  varied^by  the  fact  that  Mar- 
maduke  Wood,  in  1819,  after  his  purchase,  engaged  to  pay 
Mickle's  bond.  This  does  not  destroy  the  claim  of  Mickle  on 
his  mortgage.  It  is  doubtful  from  the  instrument  itself,  whether 
it  was  intended  for  the  benefit  of  Mickle  or  Woodward.  If  for 
Mickle,  it  was  adding  the  personal  security  of  the  purchaser  to 
that  of  the  mortgagor.  If  for  Woodward,  it  was  in  the  nature  of 
an  indemnity.  Taken  either  way,  Mickle's  claim  on  his  mortgage 
is  not  affected  by  it. 

Let  the  one-seventh  part  of  Mickle's  mortgage  be  deducted,  and 
the  balance  be  satisfied  out  of  the  fund,  together  with  costs,  and 
let  the  residue  be  applied  to  the  succeeding  incumbrauces  in  their 
order. 

CITED  in  Gaskitt  v.  Sine,  2  Seas.  401. 


504  CASES  IN  CHANCERY. 

Buckley  v.  Corse. 


JOHN  BUCKLEY  v.  ISRAEL  CORSE. 


The  distinction  in  the  English  books,  between  a  common  injunction  which  issues 
on  some  default  of  the  defendant,  and  special  injunctions  granted  on  special 
application  to  the  court,  is  of  no  importance.  All  injunctions  here  are 
granted  on  the  merits  and  on  special  application  to  the  court,  and  generally 
ex,  parte,  on  filing  the  bill. 

Whether  notice  shall  be  given  depends  on  no  settled  rule  of  practice,  bnt  on  the 
nature  of  the  case.  If  it  be  one  of  great  difficulty  or  importance,  the  court 
will  generally  require  notice  to  be  given. 

After  filing  the  bill,  and  appearance,  application  for 'injunction  maybe  made 
without  notice,  and  if  it  be  a  case  that  requires  it,  notice  will  be  ordered. 

Where  application  for  injunction  is  made  after  answer  filed,  notice  is  necessary 
according  to  the  thirtieth  rule  of  practice;  but  even  then  it  may  be  dis- 
pensed with. 

An  injunction  allowed  by  a  master  on  application  after  answer,  and  without 
notice,  is  irregular,  unless  the  notice  was  dispensed  with  by  the  master; 
which,  if  it  be  a  proper  case,  may  be  presumed  to  have  been  done. 

If  there  was  no  dispensation,  the  court  would  not  set  aside  the  injunction  simply 
for  that  reason,  if  it  appeared  to  be  a  case  in  which  the  rule  might  properly 
have  been  dispensed  with ;  but  would  retain  it,  and  order  the  complainant 
to  pay  the  cost  of  the  application. 

The  general  principle  is,  that  a  party  is  bound  to  state  all  his  case  in  his  first  bill. 
But  if  the  complainant,  after  filing  his  bill,  discover  that  he  has  omitted  to 
state  any  matter,  or  to  join  any  person  as  party  to  the  suit,  he  may  supply 
the  defect  by  amendment. 

If  the  defendant  has  answered,  and  the  complainant  thereby  obtains  farther 
knowledge  of  facts  or  circumstances  which  may  aid  him  in  the  case,  he  may 
amend  his  bill,  and  proceed  according  to  the  information  thus  obtained. 

In  general,  any  imperfection  in  the  form  of  a  bill  may  be  remedied  by  amend- 
ment, as  occasion  may  require,  if  application  for  that  purpose  is  made  in 
time. 

Before  replication,  the  order  to  amend  is  granted  of  course. 

After  an  injunction  dissolved  on  the  merits,  the  party  may  amend  and  obtain  an 
injunction  on  the  amended  bill. 

First  amendments  are  frequently  allowed  on  coming  in  of  the  answer,  without 
special  affidavits,  on  reasonable  terms. 

Injunction  bills  have  been  amended  without  prejudice  to  the  injunction,  and  even 
amended  a  second  time ;  but  the  application  for  such  second  amendment 
must  disclose  its  nature,  and  be  founded  on  affidavit  that  the  complainant 
had  not  a  knowledge  of  the  facts  so  as  to  enable  him  to  bring  that  case  on  the 
record  sooner. 

The  complainant's  bill  stated,  that  he  had  purchased  at  sheriff's  sale,  property 
on  which  the  defendant  had  a  mortgage,  which  the  complainant  supposed  to 


JANUARY  TERM,  1832.  505 

Buckley  v.  Corse. 

be  prior  to  the  judgment  under  which  he  purchased.  That  the  defendant 
filed  a  bill  on  this  mortgage,  obtained  a  decree,  and  the  property  was  about 
to  be  sold,  when  the  complainant  gave  to  the  defendant  an  absolute  deed, 
upon  an  understanding,  that  he  should  be  at  liberty  to  redeem  on  paying  the 
amount  due  on  the  mortgage.  That  after  he  had  paid  divers  sums  thereon, 
he  discovered  that  the  judgment  under  which  he  purchased  was  older  than 
the  defendant's  mortgage.  The  bill  prayed  that  the  deed  made  to  the  de- 
fendant might  be  set  aside,  and  he  compelled  to  account  and  to  refund  the 
money  paid  by  complainant  under  misapprehension  of  his  rights ;  and  for 
an  injunction  to  stay  proceedings  on  an  ejectment  to  recover  possession  of  the 
premises.  On  filing  the  answer,  which  denied  the  priority  of  the  judgment, 
and  showed  that  it  was  subsequent  to  the  defendant's  mortgage,  the  injunc- 
tion was  dissolved.  The  complainant,  with  leave,  then  amended  his  bill, 
admitted  his  mistake  in  the  date  of  his  judgment,  and  that  it  was  subsequent 
to  the  defendant's  mortgage,  and  prayed  that  the  deed  made  by  him  to  the 
defendant  might  be  declared  a  mortgage,  and  he  permitted  to  redeem  on 
paying  the  balance  due,  and  for  an  injunction  to  prevent  his  being  turned 
out  of  possession ;  which  was  allowed  by  the  master  on  the  complainant's 
depositing  the  balance  due  on  the  mortgage  with  the  clerk  of  the  court.  On 
a  motion  to  dissolve  this  second  injunction,  on  the  ground  that  it  was  irregu- 
lar, being  a  special  injunction  granted  after  appearance  and  without  notice; 
and  because  the  amendment  was  not  warranted,,  a  new  case  being  made  by 
the  amended  bill,  the  merits  of  which  were  not  disclosed  by  the  original  bill. 
The  application  was  overruled,  and  the  injunction  retained;  but  the  com- 
plainant was  ordered  to  pay  the  costs,  up  to  the  time  of  filing  the  amended 
bill,  and  the  cost  of  the  application  to  dissolve. 


The  original  bill  in  this  cause,  was  filed  in  April,  1831.  The 
complainant  stated  that  he  was  a  purchaser  at  sheriff's  sale,  of 
certain  property,  on  which  the  defendant  nad  a  mortgage  for 
one  thousand  dollars.  This  mortgage  he  supposed  to  be  prior  to 
the  judgment  under  which  he  purchased,  and  accordingly  made 
some  arrangements  with  the  defendant  for  discharging  it.  That 
some  time  after,  Corse,  the  present  defendant,  filed  a  bill  against 
the  heirs  of  Amos  Buckley,  the  mortgagor,  (of  whom  complain- 
ant was  one,)  the  heirs  of  Charles  Coxe,  deceased,  and  others, 
to  foreclose  the  equity  of  redemption  and  for  a  sale  of  the  mort- 
gaged premises ;  and  the  complainant,  having  understood  that 
the  mortgage,  so  far  as  it  affected  the  property  he  had  purchased, 
was  given  as  a  collateral  security  only,  and  believing  he  could 
not  be  affected  by  the  suit,  as  he  supposed  the  real  controversy 
was  between  said  Israel  Corse  and  the  heirs  of  Coxe,  as  mort- 


506  CASES  IN  CHANCERY. 

Buckley  v.  Corse. 

gagees,  did  not  appear  to  the  suit  nor  make  any  defence.  A  de- 
cree was  obtained,  and  he  was  ignorant  that  his  property  was  to 
be  affected  by  the  decree,  until  he  saw  it  advertised  by  the  sheriff. 
Supposing  then  that  the  property  was  liable,  and  the  sheriff  be- 
ing about  to  sell  it,  the  complainant  agreed  to  make  a  deed  in 
fee  to  the  defendant,  on  condition  that  he  might  redeem  in  a 
certain  mode  and  time  then  agreed  on.  The  bill  then  charges 
that  the  complainant  made  several  payments  under  this  arrange- 
ment, and  that  Corse  afterwards  brought  an  ejectment  against 
him,  upon  which  a  judgment  was  entered  in  1827,  and  an  exe- 
cution issued  for  the  costs,  which  were  paid.  That  the  complain- 
ant has  lately  discovered  that  he  has  totally  misapprehended  his 
rights ;  that  his  title  under  the  sheriff's  deed  is  prior  and  para- 
mount to  the  defendant's  mortgage,  and  insists  that  he  is  entitled 
to  hold  the  property  discharged  of  any  claim  of  the  defendant; 
that  the  defendant  is  nevertheless  about  to  take  out  and  'execute 
a  writ  of  habere  facias  possessionem  on  the  judgment  in  eject- 
ment, and  threatens  to  turn  the  complainant  out  of  doors.  The 
bill  prays  that  the  defendant  may  be  compelled  to  come  to  an  ac- 
count for  the  moneys  paid  by  the  complainant  under  a  misappre- 
hension of  his  rights,  and  improperly  received  by  the  defendant, 
and  that  he  may  be  restrained  from  taking  possession  of  the  pre- 
mises under  the  suit.  The  injunction  was  allowed. 

The  defendant,  in  his  answer,  denied  the  fact  alleged  by  the 
complainant,  that  his  purchase  at  the  sheriff's  sale  was  under  a 
judgment  prior  to  the  recording  of  the  mortgage  qf  the  defend- 
ant, and  showed  satisfactorily  that  the  mortgage  was  recorded  ten 
months  before  the  rendition  of  the  judgment.  The  whole  equity 
of  the  case  resting  on  this  point,  the  injunction  was,  of  course,  dis- 
solved. 

After  the  dissolution,  the  complainant  applied  for  leave  to 
amend  his  bill,  so  as  to  make  it  a  bill  to  redeem.  Leave  was 
granted,  on  the  representation  that  the  amendment  was  assented 
to  by  the  counsel  of  the  defendant.  The  complainant  then  filed 
an  amended  bill,  in  which  he  admitted  the  priority  of  the  mort- 
gage for  one  thousand  dollars  on  the  premises,  and  insisted  that 
the  deed  given  in  satisfaction  of  it  was  in  the  nature  of  a  mort- 
gage, having  attached  to  it  a  right  of  redemption  ;  that  there 


JANUARY  TERM,  1832.  507 

Buckley  v.  Corse. 

was  but  a  small  amount  due,  which  he  was  willing  to  pay.  He 
prayed  permission  to  redeem,  and  that  he  might  have  an  injunction 
to  restrain  the  defendant  from  taking  possession,  &c.  The  injunc- 
tion was  allowed  by  the  chief  justice,  acting  as  injunction  master, 
in  the  absence  of  the  chancellor,  on  the  complainant's  depositing 
with  the  clerk  of  the  court  three  hundred  and  four  dollars  and 
twenty-one  cents,  being  the  sum  computed  to  be  due. 

I.  H.  Williamson,  for  the  defendant,  moved  to  dissolve  the  last 
injunction. 

N.  Saxton,  for  complainant,  opposed  the  motion. 

THE  CHANCELLOK.  It  is  now  moved  to  dissolve  the  injunction 
on  two  grounds  : — 

1.  Because  allowed  without  notice,  and  therefore  irregular;  it 
being  a  special  injunction,  which  cannot  be  granted  on  an  ex  parte 
application,  after  appearance. 

Such  is,  no  doubt,  the  English  rule :  Morasoo  v.  Boilon,  2  Ves. 
112;  Wyatt-Prac.  Reg.  238;  1  NewL  219.  According  to  the 
English  practice,  injunctions  are  applied  for,  sometimes  before 
answer,  and  sometimes  after,  upon  the  merits  disclosed.  If  great 
injury  would  likely  ensue  by  waiting  till  an  answer  is  put  in,  the 
injunction  will  be  granted  before  answer.  In  like  cases,  the  court 
will  in  some  instances  grant  an  injunction  updh  an  ex  parte  applica- 
tion, even  after  appearance  :  Harrison  et  al.  v.  Cockrell  et  al.  3 
Mer.  1  ;  1  NewL  219.  In  the  English  books,  a  distinction  is 
made  between  common  and  special  injunctions.  When  an  injunc- 
tion issues  for  a  default  of  the  defendant,  either  in  appearing  or 
answering,  it  is  called  a  common  injunction.  Special  injunctions 
are  such  as  are  granted  only  upon  special  application  to  the  court. 
According  to  our  practice  this  distinction  is  not  of  much  impor- 
tance. All  injunctions  here  are  granted  upon  special  application  ; 
and  these  applications  are  generally  made  ex  parte  on  filing  the 
bill.  Whether  notice  shall  be  given  depends  upon  no  settled  rule 
of  practice,  but  on  the  nature  of  the  case.  If  it  be  one  of  difficulty 
and  importance,  the  court  will  generally  require  notice  to  be 
given. 


508  CASES  IN  CHANCERY. 

Buckley  v.  Corse. 

I  do  not  consider  it  necessary,  in  cases  where  an  injunction  is 
applied  for  after  filing  the  bill,  and  after  the  defendant  has  ap- 
peared, that  notice  of  the  application  should  be  given,  merely 
because  there  has  been  an  appearance.  The  application  may 
be  made  without  notice,  and,  if  it  be  a  case  that  requires  it,  no- 
tice will  be  ordered.  Where  the-  application  is  made  after  an- 
swer filed,  notice  is  necessary,  according  to  the  thirtieth  rule  of 
practice,  but  even  then  it  may  be  dispensed  with  by  the  chancel- 
lor. If  this  is  to  be  considered  as  an  application  after  answer,  the 
injunction  being  without  notice,  is  irregular,  unless  the  notice  was 
dispensed  with  by  the  master,  and  the  presumption  is  that  this 
was  done.  If  there  was  no  dispensation,  the  court  would  not  set 
aside  the  injunction  simply  for  that  reason,  if  it  appeared  to  be  a 
case  in  which  the  rule  might  properly  have  been  dispensed  with, 
but  would  retain  it,  and  order  the  complainant  to  pay  the  costs  of 
the  application. 

The  difficulty  in  this  case  arises  from  the  fact,  that  this  is  an 
amended  bill ;  that  the  injunction  issued  on  filing  the  original 
bill  has  been  dissolved  upon  the  merits  on  the  coming  in  of  the 
answer,  and  that  now  after  amending  the  bill,  a  second  injunc- 
tion has  been  granted  without  notice.  We  have  no  rule  of  prac- 
tice extending  to  such  a  case.  The  English  practice  requires  a 
notice :  Edwards  v.  Edwards,  2  Dick.  755.  Some  of  the  later 
authorities  maintain  that  in  addition  to  the  notice,  the  defendant 
must  be  in  default  for  not  answering,  before  the  injunction  will 
be  awarded :  James  v.  Dowries,  18  Ves.  522.  From  the  whole 
taken  together,  it  is  plain  that  when  a  bill  has  been  amended  af- 
ter injunction  dissolved,  a  party  cannot  take  the  ordinary  injunc- 
tion nisi.  There  must  be  an  application  upon  the  merits ;  and 
in  such  cases  notice  is  required.  According  to  our  practice  all 
injunctions  are  granted  upon  application,  and  are  upon  the  merits, 
and  may  be  considered  as  special  injunctions  in  one  sense  of  the 
term  ;  but  it  does  not  follow  that  notice  is  to  be  given  in  all  cases. 
Our  rules  require  it  in  one  case  only,  and  even  then  it  may  be 
dispensed  with,  as  has  already  been  mentioned.  From  this  cir- 
cumstance, and  from  analogy  to  our  practice,  I  am  of  opinion 
that  notice  was  not  indispensable  to  the  application,  and  that  it 


JANUARY  TERM,  1832.  509 

Buckley  v.  Corse. 

rested  with  the  master  to  determine  whether  it  should  be  given  or 
not. 

2.  The  second  reason  assigned  is,  that  the  amendment  was  un- 
warranted by  the  practice  of  the  court,  inasmuch  as  the  merits  of 
the  case  must  be  disclosed  in  the  original  bill ;  that  here  the  in- 
junction is  upon  a  new  case  made  in  the  amended  bill. 

The  general  principle  is,  that  a  party  is  bound  to  state  all  his 
case  in  his  first  bill ;  but  the  practice  of  the  court  is  very  liberal 
as  to  amendments.  If  the  plaintiff,  after  filing  his  bill,  discovers 
that  he  has  omitted  to  state  any  matter,  or  to  join  any  person  as 
party  to  the  suit,  he  may  supply  the  defect  by  amendment.  Or, 
if  the  defendant  has  answered,  and  the  plaintiff  thereby  obtains 
further  knowledge  of  facts  or  circumstances  which  may  aid  him 
in  the  cause,  he  may  amend  his  bill  and  proceed  according  to  the 
information  thus  obtained  ;  and  in  general,  any  imperfection  in 
the  frame  of  a  bill  may  be  remedied  as  occasion  shall  require,  pro- 
vided the  application  for  that  purpose  be  made  in  proper  time : 
Coop.  Eq.  PL  333.  Before  replication,  the  order  to  amend  is 
granted  of  course:  1  Newl.  192.  Injunction  bills  have  frequently 
been  amended  without  prejudice  to  the  injunction,  and  even 
amended  a  second  time;  but  the  application  for  such  second 
amendment1  must  disclose  its  nature  with  precision,  and  must  be 
founded  on  affidavit  that  complainant  had  not  a  knowledge  of  the 
facts,  so  as  to  enable  him  to  bring  that  case  upon  the  record 
sooner:  Sharp  v.  Ashton,  3  Ves.  and  B.  144.  I  am  not  aware 
that  such  strictness  of  practice  has  obtained  upon  first  amend- 
ments. They  are  frequently  allowed  on  the  coming  in  of  the 
answer,  without  special  affidavits,  upon  such  terms  as  are  reason- 
able. My  opinion  is,  there  is  nothing  objectionable  as  to  the  time 
of  the  amendment,  and  that  an  affidavit  disclosing  the  facts  was 
not  necessary. 

I  have  had  doubt  as  to  the  extent  of  the  amendment.  The 
bill  has  been  redrawn,  and  changed  to  a  bill  to  redeem.  There 
is  not  merely  a  variation  of  the  prayer  for  relief,  for  then  the 
amendment  might  be  made  after  publication  :  5  Ves.  485.  The 
facts  are  so  stated  in  this  last  bill,  as  to  be  altogether  incompati- 
ble with  the  prayer  of  the  first.  There  are  no  new  facts  that 
are  very  material,  but  the  equity  rests  on  different  grounds. 


510  CASES  IN  CHANCERY. 

.  Buckley  v.  Corse. 

The  gravamen  of  the  bill  as  first  presented  was,  that  the  complain- 
ant had  an  absolute  title  to  the  property,  older  than  the  defendant's 
mortgage ;  that  being  ignorant  of  that  fact,  and  supposing  the 
mortgage  to  be  prior,  he  agreed  to  pay  it,  and  gave  to  the  defend- 
ant a  deed  for  the  premises,  subject  to  a  right  of  redemption,  and 
thereupon  paid  large  sums  of  money;  and  that  he  had  lately 
become  acquainted  with  the  fact  that  his  title  was  anterior  to  the 
defendant's.  Upon  this  state  of  the  case,  he  prayed  that  the 
defendant  might  account  to  him  for  the  money  he  had  wrongfully 
received,  and  which  had  been  paid  to  him  through  misapprehen- 
sion. In  the  amended  bill,  he  admits  his  mistake  in  supposing 
his  title  older  than  the  defendant's,  but  insists  upon  the  other 
facts  stated,  that  the  deed  given  to  the  defendant  was  in  equity  a 
mortgage,  and  subject  to  redemption,  and  that  he  had  paid  large 
sums  of  money  in  part  discharge  of  the  debt.  The  prayer  is  for 
leave  to  redeem. 

It  is  very  clear,  that  after  an  injunction  dissolved  on  the  merits, 
the  party  may  amend  and  obtain  an  injunction  on  the  amended 
bill.  The  amendment  may  be  founded  on  facts  disclosed  in  the 
answer.  There  must  always  be  new  facts  and  charges  in  the 
amended  bill,  and  these  must  be  material,  or  a  new  injunction 
would  not  be  ordered.  New  relief  may  be  prayed  and  new  par- 
ties added,  and  the  bill  must  be  framed  so  as  to  meet  the  exigency 
of  the  case.  One  fact  often  changes  the  whole  equity  of  the  com- 
plainant's case,  and  calls  for  different  relief.  The  cases  on  the 
subject  of  amendment  are  without  number,  and  it  is  difficult  to 
draw  from  them  any  broad  principle,  or  draw  a  line  beyond  which 
the  complainant  may  not  pass  in  changing  his  case.  Modern 
authorities  have  gone  very  far.  Thus  in  Manor  v.  Doy,  2  Sim. 
and  Stu.  113,  the  plaintiff  by  his  original  bill  sought  to  set  aside  a 
deed.  After  answer  filed,  he  amended  his  bill,  under  the  usual 
order,  and  presenting  a  different  state  of  facts,  sought  to  establish 
the  deed,  and  it  was  allowed. 

I  feel  no  disposition  to  aid  the  complainant  further  than  justice 
requires.  His  first  bill  was  certainly  drawn  in  haste,  and  with- 
out a  proper  knowledge  of  facts  with  which  he  could  easily  have 
made  himself  acquainted;  but  it  would  savor  of  harshness  to 
see  him  turned  out  of  possession  without  the  privilege  of  being 


JANUARY  TERM,  1832.  511 

Skillman  v.  Van  Pelt  et  ux. 

heard.  I  incline  upon  the  whole  to  overrule  the  present  applica- 
tion and  permit  the  injunction  to  remain  ;  but  the  complainant 
must  pay  the  costs  of  the  original  bill  and  all  the  proceedings 
up  to  the  filing  of  the  amended  bill,  and  also  the  costs  of  this 
motion. 

CITED  in  Coddington  v.  Mott,  1  McCar.  432 ;  Seymour  v.  Long  Dock  Co.,  2  0. 
E.  Qr.  171. 


ISAAC  SKILLMAN  v.  JAMES  VAN  PELT  ET  UX.  AND  MONT- 
GOMERY AND  HILLSBOKOUGH. 


The  testator  devised  as  follows: — "I  give  and  devise  to  my  sons,  Abraham 
and  James,  my  farm  whereon  I  now  live ;  to  them,  their  heirs  and  assigns 
for  ever — to  be  equally  divided  between  them — Provided  they  or  their  heirs 
shall  pay  or  cause  to  be  paid  to  my  executors,  herein  after  named,  the  sum 
of  thirty-five  hundred  dollars,  within  eighteen  months  after  my  decease; 
which  said  sum  of  money  is  to  be  paid  by  them  equally,  each  one  half: "  and 
appointed  Abraham  (one  of  the  devisees)  and  a  stranger  executors.  After 
the  testator's  death,  31st  October,  1820,  the  executors  proved  the  will,  and 
the  devisees  entered  and  took  possession  of  the  premises;  and  on  the  25th 
November,  1820,  made  partition  thereof  between  them,  by  mutual  releases. 
Under  this  will,  the  devisees  took  an  estate  in  fee  simple  in  the  devised  pre- 
mises, charged  with  the  payment  of  seventeen  hundred  and  fifty  dollars 
each. 

The  payment  of  this  sum  was  not  a  condition,  on  tha  breach  of  which  the  right 
vested  in  the  executors  to  sell :  they  could  assert  their  claim  under  the  will 
only  by  suit  or  bill. 

The  orphan's  court  could  not  decree  a  sale,  founded  on  the  supposed  breach  of 
any  such  condition :  that  remedy  exists  in  this  court  alone. 

James,  one  of  the  devisees,  being  thus  seized  and  possessed  of  his  moiety  of 
the  premises  in  severally,  on  the  1st  May,  1822,  mortgaged  it  to  the  com- 
plainant for  seven  hundred  dollars.  In  April,  1822,  the  executors  settled 
their  account  in  the  orphan's  court;  by  which,  after  paying  debts  and  ex- 
penses, there  appeared  to  be  a  balance  in  their  hands  payable  to  the  legatees. 
Tn  January,  1824,  they  exhibited  to  the  orphan's  court  an  account  of  other 
debts  discovered,  amounting  to  thirty-seven  hundred  dollars,  and  introduced 
into  the  account  unpaid  legacies  amounting  to  two  thousand  and  forty  dol- 
lars; which,  with  expenses,  made  a  deficiency  of  five  thousand  seven  hun- 
dred and  forty-eight  dollars.'  This  account  was  allowed  by  the  court,  and  a 
decree  for  the  sale  of  the  real  estate  devised,  founded  upon  it.  This  account 
was  irregular.  The  orphan's  court  cannot  decree  a  sale  of  real  estate  for  the 
payment  of  legacies. 

The  order  of  the  orphan's  court,  (made  upwards  of  a  year  after  the  death  of  the 


512  CASES  IN  CHANCERY. 

Skillman  v.  Van  Pelt  et  ux. 

devisor,)  could  not  overreach  and  destroy  the  antecedent  title  of  the  com- 
plainant, under  his  mortgage  from  the  devisee. 

At  common  law,  the  heir  became  personally  liable  to  specialty  debts  of  the  an- 
cestor, by  reason  of  the  lands  descended,  to  the  extent  of  their  value.  The 
statute  3  W.  and  M.  c.  14,  placed  the  heir  and  devisee  on  the  same  footing  : 
they  are  personally  responsible  after  alienation  of  the  estate,  as  if  they  still 
held  it:  but  bona  fide  purchasers  under  them  never  were  liable;  the  lands 
in  their  hands  are  discharged. 

Our  statute  "  for  the  relief  of  creditors  against  heirs  and  devisees,"  passed  7th 
March,  1797,  extends  the  remedies  to  all  debts  of  the  ancestor,  whether  by 
specialty  or  otherwise  ;  yet  preserves  the  principle,  that  bona  fide  purcha- 
sers shall  be  protected. 

The  "further  supplement  to  the  act  making  lands  liable  to  be  sold  for  the  pay- 
ment of  debts,"  passed  12th  December,  1825,  creates  a  lien  on  the  real  estate 
of  the  ancestor  or  devisor,  for  one  year  after  the  decease ;  and  it  may  be  sold 
by  virtue  of  an  order  of  the  orphan's  court,  if  obtained  within  that  time; 
which  presupposes,  that  before  that  act  no  such  lien  existed. 


Isaac  Skillman,  the  complainant,  filed  his  bill  in  this  court, 
setting  forth,  that  James  Van  Pelt,  being  seized  and  possessed 
of  the  premises  in  the  bill  after  mentioned,  applied  to  him  for 
the  loan  of  seven  hundred  dollars,  and  offered  to  him  as  a  secu- 
rity for  the  loan  and  the  interest  to  arise  on  it,  a  mortgage  on  the 
said  premises.  That  he  advanced  the  money  on  the  faith  of  the 
said  mortgage,- and  that  Van  Pelt  and  wife  executed  to  him  the 
mortgage,  bearing  date  the  first  day  of  May,  eighteen  hundred  and 
twenty-two,  and  that  it  was  duly  registered  on  the  eighth  day  of 
the  same  month,  pursuant  to  the  statute. 

The  bill  proceeds  to  state  that  default  has  been  made  in  the  pay- 
ment covenanted  for  in  the  proviso  in  the  mortgage,  and  that  there 
is  a  large  arrear  of  interest  due. 

The  bill  further  states,  that  the  townships  of  Montgomery  and 
Hillsborough  have  in  some  way  acquired  possession  of  the  prem- 
ises, and  they  are  therefore  made  defendants  together  with  James 
Van  Pelt  and  wife. 

And  the  bill  seeks  relief  and  foreclosure  and  sale,  by  the  decree 
of  this  court. 

James  Van  Pelt  and  wife  do  not  answer,  and  as  against  them 
there  is  a  decree,  pro  confesso.  The  defendants,  Montgomery 
and  Hillsborough,  come  in  and  answer,  .that  they  have  no 
knowledge  of  the  estate  of  James  Van  Pelt  in  the  premises,  and 
that  they  know  nothing,  except  from  hearsay,  of  the  debt  due 


JANUARY  TERM,  1832. 


Skillman  v.  Van  Pelt  et  ux. 


from  Van  Pelt  to  Skillman,  or  of  the  mortgage  to  Skillman  men- 
tioned in  the  bill.  They  admit  that  they  are  in  possession.  And 
they  further  answer  and  claim  the  premises  described  in  the  mort- 
gage, by  virtue  of  a  deed  of  bargain  and  sale  from  Abraham  Skill- 
man  and  Abraham  Van  Pelt,  the  executors,  &c.  of  John  Van 
Pelt,  deceased,  to  them,  bearing  date  the  ninth  day  of  March, 
eighteen  hundred  and  twenty-five;  and  they  insist,  that  by  virtue 
of  this  deed  they  hold  the  premises  free  and  clear  of  the  mortgage, 
and  that  they,  Montgomery  and  Hillsborough,  are  the  owners  of 
the  premises  in  fee  simple. 

To  this  answer  there  is  a  replication  ;  and  the  cause  was  argued 
before  J.  W.  Scott,  one  of  the  masters  of  the  court,  by  the  direc- 
tion of  the  chancellor,  he  having  been  of  counsel  with  one  of  the 
parties. 

\ 

W.  Thompson,  for  the  complainants  ; 

,  for  defendants. 

Cases  cited :— 6  Halsl  R.  1  ;  4  Kent's  C.  130 ;  2  Atk.  R. 
619;  1  Roper  on  Wills,  505;  1  Cruise  D.  tit.  Condition;  2 
Dal.  R.  317;  5  Hoist.  R.  259;  2  Con.  R.  Wheeler  v.  Wal- 
ker; 2  Black.  C.  156;  2  Fern.  R.  222,  366;  1  Salk.  R.  156; 
2  Anst.  R.  506  to  514 ;  1  Eq.  Ca.  Ab.  149*;  Rev.  L.  291,  436 ; 
Har.  Com.  130. 

SCOTT,  M.  It  appears  in  evidence,  that  John  Van  Pelt,  in 
his  life-time,  was  the  undisputed  owner  of  the  premises;  and  that 
in  and  by  his  will,  executed  and  published  in  due  form  of  law 
to  pass  real  estate,  inter  alia,  he  devised  as  follows : — "  I  give 
and  devise  to  my  sons,  Abraham  Van  Pelt  and  James  Van 
Pelt,  my  farm  whereon  I  now  live,  containing  about  two  hun- 
dred and  thirty-five  acres  of  land,  be  the  same  more  or  less, 
with  all  the  appurtenances;  to  them,  their  heirs  and  assigns  for 
ever,  to  be  equally  divided  among  them  as  to  quantity  and  qual- 
ity, as  near  as  may  be :  Provided  they  or  their  heirs  shall  pay, 
or  cause  to  be  paid,  to  my  executors  herein  after  named,  the  sum 
of  thirty-five  hundred  dollars,  good  money  of  the  state  of  New- 

2K 


514  CASES  IN  CHANCERY. 

Skillman  v.  Van  Pelt  et  ux. 

Jersey,  within  eighteen  months  after  my  decease ;  which  said  sura, 
of  money  is  to  be  paid  by  them  equally,  each  one  half."  And  he 
makes  the  same  Abraham  Van  Pelt  and  one  Abraham  Skillman 
the  executors  of  that  will. 

John  Van  Pelt  died,  and  his  will  was  proved  the  thirty-first  day 
of  October,  eighteen  hundred  and  twenty. 

Abraham  Van  Pelt  and  James  Van  Pelt,  the  devisees,  entered 
in  and  upon  the  premises  immediately  after  his  death,  and  were 
seized  and  possessed  thereof;  and  on  the  twenty-fifth  day  of  No- 
vember, eighteen  hundred  and  twenty,  made  partition  of  the  pre- 
mises, to  each  his  moiety,  by  mutual  releases.  The  portion  thus 
allotted  to  James,  on  this  partition  and  release,  is  the  land  mort- 
gaged by  him  to  the  complainant  and  described  in  the  bill. 

James  being  thus  seized  and  possessed  in  severalty  of  the  pre- 
mises, did  mortgage  them  bona  fide  to  the  complainant. 

It  is  here  to  be  observed,  that  the  object  of  the  testator  was  to 
give  precisely  the  same  estate  to  his  two  sons,  Abraham  and  James, 
one  of  whom  he  constituted  an  executor;  and  that  intention,  if  con- 
sistent with  the  law,  and  it  can  be  fairly  collected  from  the  will,  is 
to  be  carried  into  effect. 

The  defendants,  in  their  evidence  and  argument,  but  not  in  their 
answer,  insist  that  the  personal  estate  of  the  testator,  John  Van 
Pelt  was  ascertained  as  insufficient  to  pay  his  debts,  and  that  there- 
fore an  order  was  made  by  the  judges  of  the  orphan's  court  of  the 
county  of  Somerset,  that  the  executors  should  sell  the  real  estate  of 
the  testator  for  that  purpose:  that  the  order  was  made  in  the  term 
of  April,  in  the  year  eighteen  hundred  and  twenty-four;  and  that 
thus  empowered,  the  executors  did  sell  to  them  the  premises,  by 
deed  bearing  date  the  twenty-ninth  day  of  March,  eighteen  hun- 
dred and  twenty-five. 

By  the  evidence  it  appears  that  the  executors  twice  settled 
their  accounts  in  the  orphan's  court  of  the  county  of  Somerset : 
on  each  account  there  is  a  decree  of  allowance,  and  each  ac- 
count purports  to  be  a  final  one.  By  the  first  of  these,  in  April 
term,  eighteen  hundred  and  twenty-two,  it  appeared,  that  after 
paying  all  the  debts  of  the  testator,  there  remained  a  balance  in 
the  hands  of  the  executors  of  twelve  hundred  and  ninety-two 
dollars  and  forty  cents,  to  be  paid  to  the  legatees  named  in  the 


JANUARY  TERM,  1832.  515 


Skillman  v.  Van  Pelt  et  ux. 


will,  exclusive  of  a  certain  specific  legacy  given  to  one  of  the  lega- 
tees, appraised  and  estimated  at  two  hundred  and  two  dollars  and 
seventy-five  cents.  By  the  second  account,  exhibited  in  January 
term,  eighteen  hundred  and  twenty-four,  it  further  appeared,  that 
debts  were  subsequently  discovered,  and  then  reported  to  the  or- 
phan's court,  exhibiting  a  deficiency  of  the  personal  estate  as  fol- 
lows, viz:  Debt  due  Abraham  Stryker,  Abraham  Van  Pelt  prin- 
cipal and  John  Van  Pelt  surety,  five  hundred  dollars.  Debt  due 
Cornelius  Williamson,  Abraham  Van  Pelt  principal,  John  Van 
Pelt  surety,  three  hundred  dollars.  Debt  due  to  Joseph  Skill- 
raan,  from  Abraham  Van  Pelt,  principal,  John  Van  Pelt  surety, 
two  hundred  and  fifty  dollars.  Debt  due  to  Jacob  Voorhies,  from 
Abraham  Van  Pelt  principal,  John  Van  Pelt  surety,  one  hundred 
and  fifty  dollars.  Debt  due  to  widow  Stryker,  from  Abraham 
Van  Pelt  principal  and  John  Van  Pelt  surety,  twenty-five  hun- 
dred dollars.  Thus  making  in  the  whole  a  round  sum  of  three 
thousand  seven  hundred  dollars  of  debts  due  from  Abraham  Van 
Pelt,  one  of  the  executors,  to  different  persons,  on  all  of  which 
John  Van  Pelt  was  the  surety.  Thus  it  appeared  that  the  new- 
ly discovered  debts,  and  for  which  an  order  was  prayed  that  the 
real  estate  should  be  sold,  were  primarily  the  debts  of  Abraham 
Van  Pelt  the  executor,  and  that  the  testator,  John  Van  Pelt,  was 
the  surety  only,  and  that  they  amounted  to  the  sum  of  three 
thousand  seven  hundred  dollars.  The  same  account  exhibits 
and  claims,  that  there  was  a  further  deficiency  of  the  personal 
estate;  and  for  the  purpose  of  making  this  manifest,  two  legacies 
are  introduced,  one  to  Mary  Ann  Van  Pelt  for  nine  hundred  dol- 
lars, and  the  other  to  Elizabeth  Van  Pelt  for  eleven  hundred 
and  forty  dollars,  amounting  to  two  thousand  and  forty  dollars ; 
to  which  are  added  the  expenses  of  the  settlement;  and  thus 
making  the  whole  'an  aggregate  deficiency  of  five  thousand  se- 
ven hundred  and  forty-eight  dollars  and  one  cent.  And  this  ac- 
count is  allowed  by  the  court  in  all  things.  This  deficiency  is 
adjudged,  and  there  is  a  decree  for  the  sale  of  the  real  estate 
founded  upon  it. 

The  complainant  showed  by  his  evidence,  that  the  aforesaid 
sum  of  seven  hundred  dollars,  loaned  by  him  to  the  defendant, 
James  Van  Pelt,  and  for  which  the  mortgage  was  given,  was 


51G  CASES  IN  CHANCERY. 

Skillman  v.  Van  Pelt  et  ux. 

paid  to  the  executors,  and  by  them  applied  to  the  uses  and  benefits 
of  the  estate;  and  he  claims  that  he  is  entitled  to  have  this  re- 
funded to  him  from  the  equity  thence  arising.  This  matter  does  not 
appear  in  the  bill  or  answer. 

The  complainant  lias  endeavored  to  impeach  this  order  on  the 
ground  of  fraud ;  but  I  do  not  see  in  the  course  of  the  evidence 
any  fraud  attaching  to  the  two  defendants  who  have  answered,  nor 
am  I  able  to  observe  that  they  have  had  any  agency  in  obtaining 
the  order. 

It  was  abundantly  proved  that  Abraham  Van  Pelt,  the  princi- 
pal, before  the  application  for  the  order,  and  at  the  time  of  the 
order  for  the  sale  of  the  real  estate,  had  very  considerable  estate, 
and  no  reason  has  been  assigned  to  me  why  his  property  has  not 
been  applied  to  the  payment  of  debts  for  which  he  was  primarily 
liable. 

True  the  order  is  very  hard,  very  irregular,  and  in  great  part 
founded  on  the  false  assumption  that  the  orphan's  court,  thus 
applied  to,  may  decree  a  sale  of  the  real  estate  of  the  testator  for 
the  payment  of  legacies  :  that  the  debts  of  the  testator,  and  the 
legacies,  and  the  bequests  in  his  will,  may  constitute  one  entire 
mass,  and  for  the  payment  of  which  the  orphan's  court  may  de- 
cree a  sale.  It  would  be  a  heterogeneous  mass  indeed.  Legatees 
must  look  to  other  and  better  remedies.  They  are  amply  provided, 
and  they  are  sure.  But  the  order  was  obtained,  and  so  far  forth  as 
it  really  and  bona  fide  was  for  the  payment  of  the  debts  of  the  tes- 
tator, it  must  prevail. 

It  becomes,  then,  necessary  to  inquire,  what  estate  was  given  by 
the  testator  to  his  two  sons  in  and  by  the  will  ? 

On  this  subject,  I  cannot  doubt  but  that  it  was  his  clear  inten- 
tion to  give  them  a  fee,  charged  with  the  payment  of  the  three 
thousand  five  hundred  dollars.  Both  took  the  same  estate,  and 
to  me  it  seems  absurd  to  say,  that  the  estate  of  Abraham  was  sub- 
ject to  the  condition,  strictly  so  speaking,  of  his  paying  to  himself 
seventeen  hundred  and  fifty  dollars. 

This  is  not  a  controversy  between  the  devisee  and  the  heir  at 
law,  in  which  the  latter  relies  upon  the  non-performance  of  a 
condition  precedent  to  defeat  the  estate  of  the  devisee.  I  am 
therefore  of  opinion,  that  Abraham  Van  Pelt  and  James  Van 


JANUARY  TERM,  1832.  517 


Skillman  v.  Van  Pelt  et  ux. 


Pelt  took  under  the  will  of  their  father  an  estate  in  fee,  charged 
with  the  payment  of  seventeen  hundred  and  fifty  dollars  each. 
That  the  payment  of  this  sum  was  not  a  condition  on  the  breach  of 
which  a  right  vested  in  the  executors  to  sell.  They  could  assert 
their  claim  and  exert  their  right  under  the  will  only  by  suit  or 
bill. 

The  order  of  the  orphan's  court  could  not  overreach  and  de- 
stroy the  antecedent  title  of  the  complainant,  thus  established  in 
law  and  equity.  It  could  sell,  by  the  terms  of  the  statute,  only 
such  estate  as  the  heir  or  devisee  had  at  the  time  of  the  making 
of  the  order ;  and  nothing  can  be  more  certain  than  that  the  or- 
phan's court  could  not  decree  a  sale,  founded  on  a  supposed  breach 
of  such  condition,  if  it  be  one.  That  remedy  existed  in  this  court 
alone. 

Nor  have  the  judges  of  the  orphan's  court  attempted  any  such 
order.  They  have  ordered  and  adjudged  that  the  real  estate 
shall  be  sold  to  pay  the  debts  of  the  testator,  and  the  conveyance 
by  the  executors  under  such  order,  by  the  statute,  shall  vest  in  the 
purchaser  just  such  estate  in  the  premises  sold,  as  the  heir  or  the 
devisee  had  at  the  time  of  the  making  such  order  by  the  orphan's 
court. 

That  a  bona  fide  mortgagee,  from  the  heir  or  the  devisee, 
shall  have  the  benefit  o'f  his  security,  exonerated  from  all  de- 
mands by  means  of  any  mere  debts  of  the^ancestor  or  devisor, 
whether  by  specialty  or  otherwise,  I  believe  can  hardly  be  ques- 
tioned. 

At  common  law  the  heir  became  personally  liable  by  reason  of 
the  lands  descended,  and  to  the  extent  of  their  value.  He  inherited 
subject,  personally,  to  the  debts  of  specialty. 

Until  the  statute,  3  W.  and  M.  c.  14,  the  devisee  was  in  no 
shape  bound,  nor  was  the  land  liable  even  in  his  hands.  That 
statute  placed  the  heir  and  the  devisee  on  exactly  the  same  foot- 
ing. They  are  personally  responsible  after  alienation  of  the  es- 
tate, as  if  they  still  held  it ;  but  purchasers  under  them,  bona  fide, 
never  were  liable.  The  statute  of  wills  imposed  no  obligation  on 
the  devisee  to  pay  any  of  the  debts  of  the  devisor,  by  reason  of  the 
devise,  and  the  lands  in  their  hands  are  and  always  were  dis- 
charged. 


518  CASES  IN  CHANCERY. 

Skillman  v.  Van  Pelt  et  ux. 

I  take  this  as  a  certain  and  established  principle,  concurred  in 
by  the  profession  from  time  immemorial ;  a  purchaser  from  the 
devisee  has  always  been  held  perfectly  secure  from  even  specialty 
debts.  Overturning  that  principle  now,  would  introduce  the  ut- 
most confusion. 

Our  statute,  passed  7th  March,  1797,  giving  relief  to  creditors 
against  heirs  and  devisees,  is  founded  on  this  assumption.  It 
was  drawn,  manifestly,  by  the  hand  of  a  master  of  the  subject,  and 
although  it  extends  the  remedies  to  all  debts  of  the  ancestor  or  de- 
visor, whether  by  specialty  or  otherwise,  yet  it  preserves  the  vital 
principle  that  the  purchaser,  bona  fide,  shall  be  absolutely  protected. 
Our  recent  statute,  passed  12th  December,  1825,  the  "further  sup- 
plement to  the  act  making  lands  liable  to  be  sold  for  the  payment 
of  debts,"  I  think,  recognizes  the  same  principle.  It  seems  to  me 
too  plain  to  admit  of  argument  or  discussion,  that  a  statute  in  aid 
of  creditors,  and  which  creates  a  lien  on  the  real  estate  of  the  ances- 
tor or  devisor  for  one  year,  necessarily  presupposes  that  no  such 
lien  antecedently  existed  ;  or,  at  the  least,  that  it  was  not  so  exten- 
sive or  operative. 

On  the  whole,  I  am  clearly  of  opinion  that  the  complainant  is 
entitled  to  a  decree  for  the  relief  he  seeks  in  his  bill. 

J.  W.  SCOTT. 

New-Brunswick,  Jan.  14,  1832. 

CITED  in  0" Hardin  v.  Den,  Spenc.  38  ;  Bockover  v.  Ayres,  7  0.  E.  Gr.  16. 


TIMOTHY  SOUTHARD  AND  MARY  E.  HIS  WIFE,  LATE  MARY  E. 
LUDLOW,  GETTY  M.  LUDLOW,  PHEBE  ANN  LUDLOVV,  AND 
DANIEL  B.  LUDLOW,  INFANTS,  &c.  v.  THE  MORRIS  CANAL 
AND  BANKING  CO.,  ALEXANDER  HENDERSON,  JUN.,  ISAAO 
PERRY,  AND  FREEMAN  WOODS. 


There  can  be  no  doubt  of  the  power  of  this  court  to  stay  the  commission  of  waste 
by  injunction ;  it  is  constantly  exercised,  and  is  necessary  to  the  administra- 
tion of  justice. 

Even  in  cases  of  trespass,  courts  of  equity  have  repeatedly  held,  that  when 
the  damage  was  great  and  irreparable,  or  by  constant  repetition  calculated  to 
do  lasting  injury  to  the  inheritance ;  they  would  interfere  to  prevent  the  evil. 


JANUARY  TERM,  1832.  519 


Southard  et  ux.  v.  The  Morris  Canal. 


But  where  the  trespass  complained  of  was  committed  more  than  a  year  before  the 
bill  was  filed,  and  there  is  no  allegation  that  the  defendants  are  preparing, 
or  have  threatened,  to  commit  similar  depredations;  there  is  nothing  to  au- 
thorize an  injunction. 

The  Morris  Canal  and  Banking  company,  in  erecting  the  dam  to  raise  the  waters 
in  Lake  Hopatcong.  have  not  exceeded  their  chartered  powers,  or  used  them 
unnecessarily;  it  being  notorious,  that  without  the  waters  of  Lake  Hopatcong 
their  canal  would  be  worthless. 

The  protracted  delay  of  the  complainants,  for  several  years  after  the  dam  has  been 
erected,  is  decidedly  unfavorable  to  the  motion  for  injunction.  The  appli- 
cation should  be  prompt. 

After  the  water  has  been  raised  to  a  certain  height  for  several  years,  and  the  com- 
plainants have  submitted  to  it,  they  cannot  now.  because  the  water  has  been 
temporarily  drawn  off,  take  advantage  of  that  circumstance  to  revive  the 
right,  and  place  themselves  in  the  situation  in  which  they  would  have  stood 
if  application  had  been  made  years  ago. 

The  sum  assessed  by  the  appraisers  (as  the  value  of  lands  and  damages)  can  be 
no  compensation  for  lands  not  described  in  the  survey  by  which  the  appraise- 
ment was  made. 

Whether  upon  notice  given  to  the  widow  in  possession,  a  sum  of  money  assessed 
to  her,  without  noticing  the  infant  heirs,  is  intended  for  the  damage  to  her 
dower  right,  or  as  full  compensation  for  all  the  injury  done  to  the  property, 
query  f 

Daniel  B.  Ludlow,  late  of  the  county  of  Morris,  died  in 
1823,  intestate,  leaving  a  widow  and  four  infant  children.  The 
real  estate  of  which  he  died  seized,  consisted  of  about  one  hun- 
dred acres  of  land,  situate  on  the  margin  of  the  Hopatcong  lake. 
His  widow  afterwards  intermarried  with  Timothy  Southard,  who, 
with  the  wife  and  the  infant  children,  are  the  complainants  in 
this  cause.  The  bill  is' filed  for  an  injunction  and  account.  It 
sets  out,  that  the  said  real  estate  was  formerly  valuable,  consist- 
ing chiefly  of  valuable  meadow  land,  and  having  on  it  a  con- 
venient dwelling-house  and  a  tan-yard.  That  in  November, 
1826,  the  defendants,  by  virtue  of  their  act  of  incorporation, 
proceeded  to  raise  the  waters  in  the  lake,  by  damming  up  the 
outlet,  in  consequence  of  which  the  land  and  property  were 
greatly  injured ;  the  dwelling-house  was  rendered  untenantable, 
and  the  well  filled  with  pond  water.  That  the  overflowing  has 
been  continued  without  consent,  from  that  time  to  the  present, 
with  the  exception  of  a  few  intervals,  when  the  company  have 
let  off  the  water ;  and  that  the  company  declare  their  intention 


520  CASES  IN  CHANCERY. 

Southard  et  ux.  v.  The  Morris  Canal. 

of  keeping  up  the  dam,  for  the  purposes  of  the  canal ;  in  conse- 
quence of  which  the  complainants  must  be  for  ever  deprived  of 
their  land  without  any  compensation. 

The  bill  then  states,  that  in  January,  1831,  three  of  the 
agents  of  the  company,  who  are  made  defendants,  cut  down  and 
carried  away  a  quantity  of  wood  and  timber  on  the  said  tract, 
for  the  purpose  of  making  a  communication  between  the  Hopat- 
cong  lake  and  Woods  lake  ;  which  cutting  was  not  necessary  for 
the  purposes  of  the  canal,  nor  warranted  by  the  charter.  The 
value  of  the  wood  is  estimated  at  fifteen  dollars. 

The  bill  then  charges,  that  on  the  1st  of  July,  1831,  Mrs. 
Southard  received  a  notice  that  the  appraisers,  appointed  under 
the  act  of  incorporation,  to  assess  the  damages  sustained  by  land- 
holders, would  meet  at  Dover  to  make  the  assessment;  and  that 
no  notice  was  given  to  the  infant  complainants.  That  Southard 
and  his  wife  appeared,  and  by  counsel  protested  against  any  pro- 
ceeding to  preclude  them  from  resorting  to  the  law  of  the  land 
for  redress.  That  the  commissioners  refused  to  make  appraise- 
ment for  damage  to  any  land  or  property  not  contained  in  the 
survey  or  map  submitted  to  them  by  the  company,  although  it 
was  admitted  by  the  agent  of  the  company  that  a  part  only  of 
the  lands  overflowed  were  embraced  in  the  survey.  That  in 
July,  1831,  the  said  appraisers  awarded  to  Mary  E.  Southard, 
(late  Ludlow,)  the  sum  of  five  hundred  and  ten  dollars  and  twen- 
ty cents,  for  the  damages  she  had  sustained  by  the  overflow  of 
the  lands  included  in  the  survey ;  but  no  damages  were  appraised 
to  the  infants  for  the  vinjury  to  their  property  or  interest  in  the 
land.  That  the  sum  awarded  is  a  moderate  compensation  for 
the  destruction  of  her  interest,  and  that  she  is  not  bound  by  the 
award ;  but  considering  the  known  insolvency  of  the  company, 
she  offers,  to  avoid  litigation,  to  accept  of  the  award  ;  and  she 
has  repeatedly  offered  to  do  so,  but  the  company  have  constantly 
refused. 

The  bill  further  states,  that  they  have  frequently  requested  the 
company  to  make  compensation  to  the  infants  for  the  damage 
done  by  overflowing  their  lands,  and  also  that  they  have  request- 
ed compensation  for  damages  done  to  that  part  of  the  property 
not  included  in  the  survey,  and  that  the  company  refuse  to  com- 


JANUARY  TERM,  1832.  521 

Southard  et  ux.  v.  The  Morris  Canal. 

ply  with  their  reasonable  requests.  That  in  November  last  the 
company  saw  fit  to  draw  off  the  water  from  the  surface  of  the 
pond  or  lake,  whereby  the  lands  of  the  complainants  are  left  nearly 
dry,  and  they  hoped  the  company  would  desist  from  again  over- 
owing  them,  until  they  should  make  some  reasonable  compensa- 
tion for  the  injury  committed  :  but,  on  the  contrary,  they  have 
lately  shut  their  waste  gates,  and  the  waters  are  rapidly  rising,  and 
must  soon  overflow  the  property  and  render  it  valueless. 

The  prayer  of  the  bill  is,  among  other  things,  that  the  defend- 
ants may  be  enjoined  from  cutting  and  removing  any  more  wood 
or  timber  from  the  lands  of  the  complainants,  and  from  raising  the 
water  in  the  lake  above  its  natural  height. 

Upon  notice  given,  affidavits  were  taken,  and  the  motion  for  in- 
junction argued  before  the  court,  by 

W.  Halsted,  for  the  complainants ; 
I.  H.  Williamson,  for  defendants. 

Cases  cited  -.—Eden  on  Ir>j.  104,  115,  138,  140,  164,  165,  269 ; 
I  John.  C.ll;  2  John.  C.  162,  272,  463;  3  John.  C.  282;  6  Fes. 
jr.  137;  10  Fes.  192;  2  Dow.  536  ;  Coop.  Eq.  R.  77. 

THE  CHANCELLOK.  Can  the  injunction,  as  prayed  for,  be 
granted  on  either  ground  ?  «• 

First.  As  to  the  alleged  waste. 

There  can  be  no  doubt  of  the  power  of  this  court  to  stay  the 
commission  of  waste  by  injunction.  It  is  constantly  exercised, 
and  is  necessary  to  the  proper  administration  of  justice.  Even 
cases  of  trespass  have,  of  late  years,  been  favorably  entertained, 
and  the  courts  of  equity  have  repeatedly  held,  that  where  the 
damage  was  great  and  irreparable,  or  by  constant  repetition  cal- 
culated to  do  a  lasting  injury  to  the  inheritance,  they  would  in- 
terfere to  prevent  the  evil :  Flamanff's  case,  1  Ves.  308 ;  Eden 
on  Inj.  138;  Stevens  v.  Beekman,  I  John.  C.  R.  318.  In 
this  last  case,  chancellor  Kent  held,  that  an  injunction  might  be 


522  CASES  IN  CHANCERY. 

Southard  et  ux.  v.  The  Morris  Canal. 

granted,  under  very  special  circumstances,  in  a  case  of  trespass ; 
but  that  it  would  not  be  allowed  merely  to  prevent  the  repetition 
of  a  trespass,  where  the  party  had  an  adequate  remedy  at  law. 

The  complainants'  bill  presents,  as  I  conceive,  no  matter  for  an 
injunction  on  the  ground  of  waste.  The  injury  complained  of  was 
committed  more  than  a  year  before  the  bill  was  filed.  The  wood 
and  timber  have  been  removed  from  the  premises.  There  is  no 
allegation  that  the  defendants  are  preparing  to  commit  similar 
depredations,  or  that  they  have  threatened  to  do  it.  There  is,  then, 
nothing  to  authorize  an  injunction.  It  cannot  make  reparation 
for  past  injuries ;  its  province  is  to  restrain  those  that  are  in  contem- 
plation or  in  progress.  The  object  is  strictly  preventive. 

The  bill  seeks  compensation  for  the  injuries  charged,  and  that 
an  account  may  be  taken.  Admitting  this  to  be  a  proper  tribunal 
for  obtaining  such  redress,  the  allowance  of  an  injunction  can  give 
no  aid  to  the  complainants  or  the  court. 

Secondly,  Ought  the  injunction  to  issue  to  prevent  the  company 
from  letting  down  the  flood-gates,  and  raising  the  water  above  its 
natural  height  in  the  pond  ? 

It  appears  by  the  eleventh  section  of  their  act  of  incorporation, 
that  the  company  are  expressly  authorized  to  raise  the  waters  in 
the  Green  Pond,  and  Lake  Hopatcong,  commonly  called  the 
Great  Pond,  by  damming  the  same,  and  to  use  the  surplus  water 
thus  obtained ;  all  loss  and  damage  to  the  owners  of  said 
ponds  and  the  lands  flowed  or  otherwise  used  in  obtaining  water 
for  the  canal,  being  paid  for  agreeably  to  the  previous  provisions 
of  the  act.  The  company,  in  erecting  their  dam,  have  not  ex- 
ceeded their  chartered  powers ;  nor  have  they  used  them  unne- 
cessarily, for  it  is  a  matter  of  general  notoriety,  that  without  the 
water  of  Lake  Hopatcong,  their  canal  would  be  worthless. 
The  dam  is  represented  to  have  been  built,  and  the  overflowing 
to  have  taken  place,  as  early  as  November,  1826,  upwards  of 
five  years  ago.  It  is  charged  that  the  dwelling-house  has  been 
rendered  almost  uninhabitable,  the  meadows  spoiled,  and  the" 
garden  and  tan-yard  greatly  injured.  And  yet  this  in  the  first 
time  an  application  has  been  made  for  an  injunction.  This  pro- 
tracted delay  is  decidedly  unfavorable  to  the  present  motion. 


JANUARY  TERM,  1832.  523 


Southard  et  ux.  v.  The  Morris  Canal. 


The  object  of  the  injunction,  as  already  stated,  is  preventive, 
and  the  application  should  be  prompt.  It  is  very  unusual  for  a 
party  who  has  stood  still,  and  seen  his  adversary  erect  a  nuisance 
at  great  expense,  and  then  permitted  it  to  continue  for  a  number 
of  years  without  complaint,  to  come  into  this  court  for  an  order 
to  prevent  its  continuance.  To  avoid  this  difficulty,  the  com- 
plainants set  up,  that  the  waters  have  been  for  some  time  per- 
mitted to  escape,  so  that  the  lake  is  now  restored  to  its  natural 
level ;  and  that  the  company  are  now  about  to  raise  the  water  to 
its  former  height.  They  insist,  that  this  is  a  renewal  of  the  nui- 
sance, or  an  attempt  to  renew  it,  which  ought  to  be  prevented. 
It  is  to  be  remarked,  however,  that  the  defendants  are  about  to 
do  nothing  more  than  they  have  formerly  done.  There  is  no 
charge  that  they  are  about  to  raise  the  water  higher  than  for- 
merly, or  than  it  was  when  the  map  and  valuation  were  made. 
The  object  of  the  dam  was  to  raise  the  water  in  the  lake  to  a 
certain  height.  It  has  been  so  raised  for  several  years,  and  the 
complainants  have  submitted  to  it.  They  cannot,  now,  because  the 
water  has  been  temporarily  drawn  off,  take  advantage  of  that 
circumstance,  so  as  to  place  themselves  in  the  situation  in  which 
they  would  have  stood,  if  they  had  made  this  application  five  years 
ago.  It  is  not  sufficient  to  revive  the  right  which  might  then 
have  existed. 

The  complainants  insist,  however,  that  the  lands  of  the  in- 
fant heirs  have  not  been  appraised,  or  paid  for  in  any  way ;  that 
the  sum  awarded  to  Mrs.  laid  low  has  not  been  paid  to  her,  and 
that  the  defendants  should  be  restrained  from  raising  the  water 
until  full  compensation  is  made.  The  case  shows,  that  apprai- 
sers were  appointed  under  the  act,  and  that  a  valuation  took 
place.  The  whole  damage  sustained  by  this  property  was  as- 
sessed by  the  appraisers,  as  the  defendants  contend,  at  five  hun- 
dred and  ten  dollars  and  twenty  cents.  The  complainants, 
Southard  and  wife,  insist  that  this  was  the  damage  assessed  to 
the  dower  interest  of  Mrs.  Southard,  and  that  they  refuse  to  pay 
it  to  her.  In  the  return  of  the  appraisers,  a  copy  of  which  has 
been  exhibited,  it  appears  there  is  an  assessment  made  to  Mrs. 
Ludlow  of  five  hundred  and  ten  dollars  and  twenty  cents,  as 
above  stated :  and  the  quantity  of  land  occupied  by  the  compa- 


524  CASES  IN  CHANCERY. 

Southard  et  ux.  v.  The  Morris  Canal. 

ny,  and  for  which  an  allowance  is  made,  is  twenty-eight  acres 
and  four  hand  red  ths,  or  not  quite  one  third  of  the  farm.  If  the 
appraisers  intended  this  as  a  compensation  for  the  injury  done  to 
the  whole  property,  the  injunction  ought  not  to  issue,  because 
the  company  have  offered  to  pay  the  money  to  the  persons  enti- 
tled, and  they  have  offered  to  pay  it  into  court.  It  is  not  proper 
for  rne,  at  this  time,  to  express  any  definite  opinion  as  to  the  in- 
tention of  the  appraisers,  or  the  proper  way  in  which  the  money 
should  be  distributed.  The  complainants  may  not  choose  to  ac- 
cept the  sum  awarded,  and  may  take  the  legal  remedy.  I  may 
say,  however,  that  there  is  at  least  a  probability,  that  the  sum  ap- 
praised was  intended  as  a  full  compensation  for  all  the  injury  sus- 
tained by  the  property,  it  then  being  in  the  possession  of  Mrs. 
Ludlovv,  in  whose  favor  the  award  was  made.  While  this  proba- 
bility remains,  and  the  question  is  unsettled,  I  cannot  consent  that 
an  injunction  should  go  on  the  ground  that  no  compensation  has 
been  made  or  offered. 

There  was  another  point  raised  by  the  complainants  at  the  hear- 
ing, viz:  that  the  defendants  overflowed  .more  land  .than  had  been 
described  on  the  map  or  appraised  by  the  commissioners.  This 
presents  a  different  question  from  any  yet.  considered.  The  sum 
assessed  by  the  appraisers  can  be  no  compensation  for  lands  not  de- 
scribed in  the  survey  by  which  the  appraisement  was  made.  In 
view  of  this,  it  is  proposed  to  give  sufficient  security  for  the  amount 
of  damages  the  complainants  might  be  justly  entitled  to  on  that 
ground.  I  think  this  would  be  right,  provided  the  complainants 
will  signify  their  willingness  to  abide  the  decision  of  the  court,  in 
regard  to  the  distribution  of  the  money  awarded  by  the  commis- 
sioners. From  what  passed  at  the  argument,  I  presume  there  will 
be  no  difficulty  on  this  part  of  the  case. 

The  injunction  is  refused,  with  costs. 

CITED  in  We*t  v.  Walker,  2  Or.  Ch.  2S9. 


CASES    DECIDED 


IN   THE 


COURT   OF  CHANCERY 

OF   THE 

STATE    OF    NEW-JERSEY, 

APRIL  TERM,  1832. 


MARIA  STAFFORD  v.  JAMES  B.  STAFFORD  AND  JOSEPH  B. 
STAFFORD. 


Upon  satisfactory  proof  of  the  execution  and  existence  of  a  deed,  and  the  oath  of 
the  party  that  it  is  lost,  secondary  evidence  of  the  contents  may  be  admit- 
ted. 

Evidence  going  to  show  that  a  deed  might  have  been  obtained  by  fraud,  misrep- 
resentation, or  deception,  is  not  sufficient  to  support  a  bill  charging  that  the 
deed  is  false,  forged,  and  counterfeited. 


The  principal  object  of  this  bill  is  to  procure  a  decree  of  the 
court,  declaring  a  certain  deed  of  indenture,  purporting  to  have 
been  given  by  Joseph  B.  Stafford  and  the  complainant,  then 
being  his  wife,  to  the  said  James  B.  Stafford,  false,  forged,  and  of 
none  effect. 

The  bill  charges  that  William  Holmes,  the  father  of  the  com- 
plainant, died  in  1821,  and  by  his  will  gave  to  her  "one  third 
part  of  his  whole  estate."  That  in  1823,  at  the  age  of  twenty 
years,  she  intermarried  with  Joseph  B.  Stafford ;  who  proved  to 
be  a  man  of  grossly  intemperate  and  dissolute  habits,  and  soon 
dissipated  her  share  of  the  personal  property  coming  to  her  from 
her  father's  estate.  That  in  consequence  of  his  ill  treatment 
she  was  obliged  to  quit  his  house,  and,  with  an  infant  child,  seek 
shelter  in  the  house  of  her  mother.  In  1827  she  applied  for, 

525 


526  CASES  IN  CHANCERY. 

Stafford  v.  Stafford. 

and  obtained,  a  divorce  a  vinculo  matrimonii,  from  the  legisla- 
ture. 

That  in  1825,  the  said  Joseph  B.  Stafford,  with  a  view  to 
obtain  possession  of  her  share  of  the  land  derived  under  the 
will,  applied  to  the  chief  justice  for  a  partition,  in  the  name  of 
himself  and  the  complainant  as  his  wife:  that  commissioners  were 
appointed,  who  reported  that  the  land  could  not  be  divided  with- 
out injury  and  great  prejudice  to  the  owners,  and  thereupon  they 
were  directed  to  make  sale  of  it,  according  to  the  provisions  of  the 
law. 

That  one  James  B.  Stafford,  the  father  of  .Joseph,  under  pre- 
tence of  keeping  the  proceeds  of  the  said  sale  safely  for  the  use  and 
benefit  of  the  complainant,  procured  her  signature  to  some  writing, 
which  he  said  was  a  power  of  attorney,  to  enable  him  to  take 
charge  of  it:  that  afterwards,  suspecting  his  intention,  and  that  he 
was  leagued  with  her  husband  to  get  the  property  in  possession  for 
his  own  benefit,  she  filed  her  bill  in  this  court,  praying  an  injunc- 
tion to  restrain  the  commissioners  from,  paying  the  money  to  the 
said  Joseph  B.  Stafford  :  that  the  injunction  was  granted,  and  re- 
mains in  force  to  the  present  time. 

The  bill  then  charges,  that  the  said  James  B.  Stafford  sets 
up  against  the  complainant,  a  certain  deed  of  indenture  between 
Joseph  B.  Stafford  and  Maria  his  wife  of  the  first  part,  and 
James  B.  Stafford  of  the  other  part ;  which  deed  is  set  out  at 
length,  and  purports,  for  the  consideration  of  one  thousand  dol- 
lars, to  convey  to  the  said  James  B.  Stafford,  his  heirs,  execu- 
tors, administrators  and  assigns,  for  ever,  all  the  interest  of  the 
said  Maria  Stafford,  the  complainant,  of,  in  and  to  the  property 
given  her  by  the  will  of  her  father,  William  Holmes.  The  deed 
purports  to  have  been  acknowledged  before  Andrew  Rowan,  es- 
quire, then  a  commissioner  for  taking  the  acknowledgment  and 
proof  of  deeds,  in  and  for  the  county  of  Middlesex,  on  the  same 
day  it  bears  date,  viz.  on  the  25th  of  November,  1824.  That  on 
the  25th  day  of  December,  1826,  the  said  deed  was  recorded  in  the 
clerk's  office  of  the  county  of  Middlesex. 

It  is  then  further  charged,  that  the  said  instrument  purporting 
to  be  an  indenture,  and  the  writing  purporting  to  be  an  acknow- 
ledgment before  Andrew  Rowan,  esquire,  are,  and  each  of  them 


APRIL  TERM,  1832.  527 


Stafford  v.  Stafford. 


is,  false,  feigned,  forged,  and  counterfeited  ;  and  that  the  names 
of  the  witnesses,  and  of  the  complainant,  as  one  of  the  grantors, 
are  also  false,  forged,  and  counterfeited  ;  and  also  that  the  re- 
ceipt, purporting  to  be  for  the  consideration  money,  and  which  is 
endorsed  on  the  said  deed,  is  fraudulent  and  false,  and  only  placed 
there  to  give  an  appearance  of  authenticity  to  the  pretended  trans- 
action. 

Against  the  effect  of  this  conveyance,  so  set  up  by  the  said  James 
B.  Stafford,  the  complainant  seeks  to  be  relieved. 

The  answer  of  James  B.  Stafford  denies  expressly  the  charge, 
that  the  deed  and  acknowledgment  are  forged  or  fraudulent ; 
and  states,  that  after  the  marriage  of  his  son,  Joseph  B.  Stafford, 
with  the  complainant,  and  while  they  lived  together,  they  fre- 
quently applied  to  him  for  assistance :  that  he  made  frequent 
and  large  advances  to  them  for  their  benefit,  and  was  called  on 
to  make  more,  which  he  refused  to  do  unless  secured  :  that  there- 
upon the  said  Joseph  B.  Stafford  and  wife,  with  the  view  of  ob- 
taining further  relief,  voluntarily  proposed  and  offered  to  sell  and 
release  to  him  all  their  remaining  right  under  the  will  of  William 
Holmes,  deceased,  the  father  of  the  said  complainant:  that  be- 
ing willing  to  oblige  them,  this  defendant  acceded  to  the  propo- 
sal, and  afterwards,  viz.  on  the  25th  of  November,  1824,  the 
conveyance  was  executed  for  the  sum  of  one  thousand  dollars, 
bona  fide  paid  and  secured  to  be  paid,  and  acknowledged  before 
Andrew  Rowan,  esquire,  commissioner.  The  defendant  admits 
that  the  deed  was  not  recorded  until  two  years  after  its  execution  ; 
and  states  that  he  procured  an  application  to  be  made  for  a  di- 
vision of  the  real  estate,  in  the  names  of  Joseph  B.  Stafford  and 
wife;  and  that  the  real  estate,  not  being  susceptible  of  division, 
was  subsequently  sold  by  the  commissioners  for  fifteen  hundred 
and  ninety-seven  dollars:  that  this  was  for  his  own  benefit,  and 
not  for  the  benefit  of  the  complainant  and  her  husband.  He  de- 
nies that  the  complainant  ever  executed  to  him  any  letter  of  attor- 
ney, or  any  writing  represented  as  such. 

In  further  answering,  the  defendant  states,  that  the  original 
deed,  with  the  acknowledgment  on  it,  was  in  his  possession  at 
the  time  of  the  commencement  of  this  suit,  and  was  then  shown 
by  him  to  Andrew  Rowan,  esquire,  the  commissioner  who  took 


528  CASES  IN  CHANCERY. 

Stafford  v.  Stafford. 

the  acknowledgment ;  but  that  the  same  has  since  that  time 
been,  by  some  casualty,  mislaid  or  lost,  and  cannot  now  be 
found. 

After  issue  joined,  a  number  of  witnesses  were  examined  by 
the  parties  respectively ;  and  the  testimony  being  closed,  the 
cause  was  submitted  to  the  court  without  argument. 

S.  It.  Hamilton,  for  complainant ; 
H.  W.  Green,  for  defendant. 

THE  CHANCELLOR.  If  I  rightly  apprehend  the  case,  there 
is  but  a  single  question  involved  in  it,  viz:  whether  the  com- 
plainant, together  with  her  husband,  Joseph  B.  Stafford,  did 
actually  and  in  truth  make  a  conveyance  of  all  their  interest  in 
the  estate  of  William  Holmes,  deceased,  on  or  about  the  25th 
day  of  November,  1824,  and  acknowledge  the  same  before  a 
competent  authority,  as  is  alleged  by  the  defendant ;  or  whether 
the  instrument  set  up  by  the  defendant,  .and  purporting  to  be 
such  conveyance,  is  false,  forged,  and  counterfeited,  as  is  charged 
by  the  complainant  ?  How  far  fraud  may  have  entered  into  the 
procurement  of  the  instrument,  or  whether  the  consideration  was 
bona  fide,  are  questions  not  raised  by  the  pleadings,  and  therefore 
not  proper  for  the  consideration  of  the  court. 

I  propose  to  inquire,  in  the  first  place,  what  is  the  evidence  to 
prove  that  there  was  actually  a  conveyance  made  by  Joseph  B. 
Stafford  and  wife  to  James  B.  Stafford,  of  the  property  now 
claimed.  Unfortunately  for  all  parties,  the  original  instrument 
has  been  lost  or  mislaid,  and  cannot  now  be  produced,  and  secon- 
dary evidence  must  be  resorted  to.  That  there  was  a  paper  once 
in  existence,  purporting  to  be  a  deed  between  the  parties,  is  evident 
from  the  fact  that  it  was  recorded  in  the  clerk's  office  of  the  county 
of  Middlesex,  in  December,  1826. 

It  appears  from  a  copy  of  the  record,  that  the  original  was 
acknowledged  before  Andrew  Rowan,  esquire,  one  of  the  com- 
missioners, &c.  of  the  county.  He  has  been  examined  as  a 
witness  on  the  part  of  the  defendant,  and  states,  under  oath, 
that  he  recollects  taking  the  acknowledgment  of  the  grantors, 


APRIL  TERM,  1832.  529 

Stafford  v.  Stafford. 

Joseph  B.  Stafford  and  Maria  his  wife.  The  deed  was  to  James 
B.  Stafford,  and  he  understood  it  to  convey  the  right  of  Maria 
the  wife,  to  the  place  on  which  her  father  had  lived.  Mrs.  Staf- 
ford was  present,  and  he  made  known  the  contents  of  the  deed 
to  her.  This  took  place  shortly  after  their  marriage,  and  while 
they  lived  at  A  lien  town,  with  James  B.  Stafford  the  father.  The 
acknowledgment  was  taken  at  the  time  the  certificate  bears  date. 
He  further  states,  that  he  saw  the  deed  in  the  winter  of  1830. 
The  certificate  of  acknowledgment  was  then  upon  it,  and  he 
knew  his  hand-writing  signed  to  the  acknowledgment.  It  was 
shown  to  hi  in  by  James  B.  Stafford,  and  he  then  read  the  deed 
over. 

This  witness  was  of  the  age  of  eighty-two  years  when  he  was 
examined  in  1830,  and  consequently  must  have  been  seventy- 
six  years  old  when  the  acknowledgment  was  taken.  It  was  at- 
tempted to  be  shown  on  the  part  of  the  complainant,  that  he 
was  not  at  that  time  competent  to  take  an  acknowledgment,  and 
that  he  was  quite  unequal  to  the  transaction  of  business  at  the 
time  he  was  examined.  The  attempt  was  not  successful.  He 
is  proved,  by  various  witnesses,  to  have  been  a  smart  man  for 
his  years,  especially  as  it  regarded  the  powers  of  his  mind,.  On 
this  point,  the  testimony  of  John  Drummond,  Sarah  Smith  Staf- 
ford, James  Cook,  and  especially  of  Robert  Z.  Purdy,  is  very 
satisfactory.  Mr.  Purdy  says  he  has  been  acquainted  with  him, 
for  thirty  years,  and  lived  near  him;  he  used  to  be  almost  daily, 
in  the  store  of  witness :  that  he  moved  to  Bloomsbury  in  March,. 
1831,  and  that,  just  before  he  moved,  the  deponent  had  a  set- 
tlement with  him.  Their  dealings  were  of  considerable  extent, 
and  several  years  standing.  The  old  gentleman  was  perfectly  able 
to  do  business;  as  capable  as  ever  he  was,  and  as  competent  to  take 
an  acknowledgment  as  he  was  several  years  before.  It  appears  by 
the  testimony  of  Drummond,  that  even  after  he  moved  to  Blooms- 
bury,  he  retained  his  mental  faculties  to  a  great  degree,  and  was 
competent  to  do  business. 

The  evidence  of  Andrew  Rowan  is  corroborated  by  that  of 
his  daughter,  Sarah  Drummond;  who  states,  that  she  recollects 
James  B.  Stafford  calling  at  her  father's  house  in  January,  1830, 
and  that  he  produced  a  deed  from  Joseph  B.  Stafford. and  wife  to. 

2L 


530  CASES  IN  CHANCERY. 

Stafford  v.  Stafford. 

James  B.  Stafford.  She  saw  the  deed,  and  read  it  over;  she 
noticed  the  signature  to  the  acknowledgment :  it  was  her  father's 
hand  writing.  She  had  seen  him  write  frequently,  and  was  famil- 
iar with  the  hand. 

The  defendant  has  proved  further,  by  Catharine  Ann  Beck, 
that  she  was  present  at  the  signing  of  the  deed  at  Allentown  by 
Joseph  B.  Stafford  and  his  wife.  It  was  cold  weather,  she  thinks 
December,  and  six  or  seven  years  ago,  (1824  or  1825.)  It  was 
signed  in  Mr.  Stafford's  office,  after  candle-light,  and  the  pro- 
perty mentioned  in  it  was  the  Holmes  property.  Joseph  B.  Staf- 
ford and  wife  were  living  at  the  time  at  his  father's.  This  testi- 
mony is  corroborated  by  that  of  Sarah  Smith  Stafford,  the  daugh- 
ter of  the  defendant,  who  states,  that  Joseph  and  his  wife  re- 
moved from  her  father's  on  the  14th  December,  1824,  and  that 
she  was  present  at  the  execution  of  the  deed.  It  was  in  her  fa- 
ther's office,  at  candle-light.  .  It  was  the  latter  part  of  November, 
1824.  Andrew  Rowan  was  in  the  office  when  the  deed  was  signed. 
Catharine  Ann  Beck  was  there,  and  also  Edward  Parent,  Sydney 
P.  Burden  and  others. 

The  defendant  then  has  shown,  by  two  witnesses,  that  Joseph 
B.  Stafford  and  the  complainant  executed  a  deed  to  James  B. 
Stafford  at  Allentown,  in  the  fall  of  1824,  in  the  evening;  and 
that  Judge  Rowan  was  there  that  evening  in  the  office.  One  of 
them  states  it  to  have  been  a  deed  for  the  Holmes  property.  He 
has  produced  a  copy  of  a  deed  from  the  registry,  agreeing  in  date 
and  substance  with  the  one  described.  He  has  shown  by  Judge 
Rowan  that  he  at  that  time  acknowledged  such  a  deal ;  that  the 
grantors  were  well  known  to  him,  and  the  contents  of  the  deed 
were  made  known  to  the  complainant  before  signing;  that  he 
has  since  seen  the  deed,  and  recognized  his  hand-writing  to  the 
acknowledgment;  that  the  business  was  transacted  at  Allen- 
town,  before  the  complainant  and  her  husband  moved  from  his 
father's  house. 

This  evidence,  with  the  oath  of  the  defendant,  is  satisfactory 
to  show,  that  a  deed  was  actually  executed  and  acknowledged 
at  the  time  and  place  alleged  by  the  defendant  in  his  answer; 
and  it  must  prevail,  unless  the  complainant  shall  be  enabled  to 


APRIL  TERM,  1832.  531 


Stafford  v.  Stafford. 


overcome  it  by  other  and  more  weighty  proof,  or  show  that  the  de- 
fendant's witnesses  are  not  worthy  of  credit. 

The  complainant  has  called  the  persons  whose  names  appear 
in  the  copy  of  the  instrument  as  subscribing  witnesses;  and  from 
the  situation  in  which  they  stand  to  the  defendant,  (other  things 
being  equal,)  their  declarations  are  certainly  entitled  to  great 
weight.  Sydney  P.  Burden  says,  that  about  four  years  previous 
to  the  time  of  his  examination,  that  is  to  say,  In  1830,  he  thinks 
in  the  month  of  August,  James  B.  Stafford  came  one  day  in 
great  haste  for  him  to  sign  his  name  as  a  witness  to  a  deed.  He 
went  to  Stafford's  office.  Stafford  said  he  wanted  to  send  it  to 
New-Brunswick  next  morning.  Witness  went  and  signed  his 
name  under  the  name  of  Edward  Parent.  There  was  no  one 
there  but  James  B.  Stafford  and  himself.  Stafford  said  it  required 
two  witnesses  to  get  it  recorded,  and  that  it  was  a  deed  from 
Bloomfield  and  his  wife ;  but  did  not  state  to  whom  given,  nor  for 
what  property.  He  believes  he  has  signed  other  papers  for  Mr. 
Stafford,  but  cannot  recollect  any  particular  one.  Mr.  Stafford 
told  him,  his  son  and  wife  wanted  to  have  the  deed  recorded,  and 
that  he  was  to  have  the  handling  of  it.  He  further  states,  that 
he  put  tyis  name  to  the  paper  as  a  neighborly  act,  and  did  not 
know  whether  it  was  right  or  Wrong,  or  that  there  would  be  any 
difficulty  in  witnessing  a  paper  that  he  had  not  seen  executed.  He 
never  saw  Maria  Stafford,  the  complainant,  execute  or  acknowledge 
any  paper.  •• 

This  transaction  cannot  be  the  same  one  adverted  to  by  the 
two  female  witnesses  of  the  defendant.  This  was  in  1826 — that 
in  1824.  The  one  was  in  August — the  other  in  cold  weather. 
One  was  before  sunset — the  other  after  candle-light.  One  was  in 
the  presence  of  witness  and  Stafford  alone — the  other  in  presence 
of  a  number  of  persons.  Joseph  B.  Stafford  and  wife  were  present 
at  the  one,  but  not  at  the  other.  The  witness  does  not  say  that 
this  is  the  only  paper  he  ever  witnessed  for  Stafford.  He  says  at 
one  time  that  he  believes  he  has  witnessed  others,  but  cannot 
recollect  any  particular  paper  so  as  to  name  it.  Afterwards  he 
states  he  has  never  witnessed  any  other  deed  or  paper  for  him  that 
he  remembers. 

Admitting  all  this  to  be  true,  I  do  not  see  how  it  is  to  impeach 


532  CASES  IN  CHANCERY. 

Stafford  v.  Stafford. 

the  deed  set  up  by  the  defendant.  What  paper  it 'was  that  the 
witness  signed,  may  be  a  subject  for  speculation  :  all  the  witness 
can  say  is,  that  it  was  a  deed  from  Joseph  B.  Stafford  and  wife ; 
but  to  whom  given,  or  for  what  property,  he  cannot  say.  The 
complainant  does  not  allege,  that  in  1826,  she  and  her  husband 
gave  a  deed,  and  therefore  that  the  one  in  question  is  forged;  on 
the  contrary,  she  expressly  denies  having  ever  given  any  deed 
for  the  property.  Nor  does  the  complainant  allege  that  the  deed 
was  palmed  upon  her  as  a  power  of  attorney,  or  some  other  in- 
strument, and  her  signature  thereby  fraudulently  obtained.  She 
insists  that  the  deed  set  up  by  the  defendant  is  a  false  deed,  and 
that  the  names  of  the  grantors  and  the  witnesses  are  false  and 
forged.  This  witness  does  not  prove  that  fact.  Nor  is  it  made 
out  by  the  other  subscribing  witness,  Edward  Parent.  He  says, 
he  cannot  remember  that  he  ever  saw  Maria  Stafford  execute  a 
deed  for  her  father's  property.  He  recollects  signing  one  paper 
for  James  Stafford.  It  was  at  the  house  of  Joseph  B.  Stafford, 
when  he  '(Stafford)  lived  between  Englishtown  and  Cranbury. 
The  paper  was  represented  to  be  a  power  of  attorney ;  the  witness 
did  not  see  it  executed.  He  has  witnessed  a  number  of  papers  for 
Mr.  Stafford,  both  before  and  since.  It  is  denied  by  the  Defendant 
that  there  was  ever  a  power  of  attorney  executed  to  him  by  the 
complainant  and  her  husband.  He  states,  that  about  the  time 
the  deed  was  given,  his  son  executed  a  power  of  attorney  to  au- 
thorize him  to  collect  from  the  executor  of  William  Holmes,  de- 
ceased, his  wife's  share  of  the  personal  estate ;  and  that  this  was 
the  only  letter  of  attorney  that  was  given.  On  the  contrary, 
Samuel  Craft,  who  was  one  of  the  commissioners  appointed  to 
divide,  and  afterwards  to  sell  the  land,  states  expressly,  that 
James  B.  Stafford  produced  before  the  commissioners  a  letter  of 
attorney,  given  by  Joseph  B.  Stafford  and  wife  to  James  B.  Staf- 
ford and  wife ;  and  that  at  the  time  the  commissioners  were  en- 
gaged in  the  performance  of  their  duties,  James  B.  Stafford  and 
wife  attended  with  them,  under  its  authority.  However  much 
this  may  shake  the  confidence  to  be  reposed  in  the  defendant's 
answer,  it  does  not  materially  affect  the  evidence  bearing  upon 
the  main  question.  And  if  it  be  true  that  Parent  did,  at  that 
time,  witness  a  power  of  attorney,  it  does  not  necessarily  follow 


APRIL  TERM,  1832.  533 

Stafford  v.  Stafford. 

that  he  did  not  attest  the  deed,  and  that  therefore  it  was  a  for- 
gery. 

There  is  certainly  some  mystery  in  the  conduct  of  the  defen- 
dant, about  the  division  and  sale  of  the  land.  He  made  appli- 
cation for  a  division  in  the  names  of  Joseph  B.  Stafford  and  his 
wife,  though  they  had  no  title.  He  declared  that  he  acted  in 
the  matter  as  their  agent.  He  was  anxious  that  the  property- 
should  be  divided,  and  not  sold  ;  that  the  land  might  be  kept  for 
the  grand-child;  and  in  a  letter  to  one  of  the  commissioners,  he 
finds  fault  with  their  proceedings,  and  says  that  Maria,  the  com- 
plainant, has  never  as  yet  had  any  thing  out  of  the  estate.  The 
only  explanation  of  which  it  appears  susceptible,  is,  that  it  it> 
not  uncommon  for  purchasers  of  individual  shares  of  real  estate 
to  apply  for  a  division  in  the  names  of  the  original  heirs,  and  act 
throughout  rather  as  the  attorney  than  the  owner.  In  this  in- 
stance, Mr.  Stafford  may  not  have  cared  to  have  it  known,  that 
he  had  an  absolute  conveyance  of  the  whole  property.  His  mo- 
tive may  have  been  impure;  his  conduct  may  have  been  frau- 
dulent, and  he  may  appear  utterly  unworthy  of  credit;  he  may 
have  procured  the  conveyance  by  fraudulent  misrepresentations, 
or  the  consideration  may  be  altogether  feigned  ;  and  yet  the  ques- 
tion whether  the  deed  was  actually  given  remain  unaffected. 

Taking  the  whole  case  together,  there  is  reason  to  believe,  a 
mistake  exists  somewhere ;  and  it  is  to  be  hoped  it  is  a  mistake 
simply.  It  is  not  possible  to  reconcile  all  ttle  evidence,  or  rather 
all  the  inferences  deducible  from  it;  but,  taking  it  together,  I  am 
satisfied  that  the  weight  of  evidence  is  very  clearly  with  the  de- 
fendant, and  that  such  a  deed  as  is  set  up  by  the  defendant  was 
actually  executed  by  the  complainant  and  her  husband :  how 
obtained,  and  for  what  purpose,  it  is  not  for  me  to  inquire. 

This  is  purely  a  matter  of  fact,  and  I  should  have  preferred  its 
trial  in  another  mode;  but  as  the  amount  in  dispute  is  not  large, 
and  there  are  no  serious  difficulties  on  my  mind  as  to  the  proper 
conclusion,  I  have  not  thought  it  advisable  to  put  the  parties  to 
the  expense  of  an  issue. 

Let  the  complainant's  bill  be  dismissed,  with  costs. 

CITED  in  Note  to  Garwood  v.  Eldridge,  1  Or,  Ch.  291. 


534  CASES  IN  CHANCERY. 

Youle  et  ux.  v.  Richards  et  al. 

JOHN  YOULE    AND  CATHARINE   HIS   WIFE,  v.  SAMUEL  RICH' 

ARDS  ET  AL. 


The  bill  stated  that  the  complainant,  being  seized  of  a  tract  of  land,  and  indebted 
to  defendant,  executed  a  deed  to  him  in  fee  simple  for  the  premises,  and  de- 
livered it  to  his  agent,  upon  an  understanding  that  complainant  should  have 
an  opportunity  to  pay  the  debt  in  a  given  time,  and  that  the  agent  should 
execute  a  written  agreement  to  secure  the  right  of  redemption.  That  the 
agent  executed  and  delivered  to  the  complainant  an  agreement  in  writing, 
that  if  he  should  pay  the  debt  within  one  year  the  deed  should  be  void. 
This  conveyance,  when  coupled  with  the  agreement,  is  in  equity  nothing 
more  than  a  mortgage ;  and  the  complainant  is  entitled  to  redeem  on  pay- 
ment of  the  amount  due. 

Whenever  it  can  be  clearly  shown  to  be  the  intention  of  parties  that  real  estate, 
when  conveyed,  shall  be  subject  to  redemption,  it  is  considered  as  a  mere 
security,  and  can  operate  only  as  a  mortgage. 

The  agreement,  so  far  as  it  restricts  the  right  of  redemption  to  one  year,  is  void. 
The  right  of  redemption  cannot  be  restricted  to  a  limited  time,  or  to  a  par- 
ticular class  of  persons. 

"  Once  a  mortgage  and  always  a  mortgage,"  is  an  ancient  equity  maxim  of  ap- 
proved policy  and  wisdom. 

But  a  mortgagor,  for  good  cause,  may  surrender  his  right  of  redemption,  and 
render  the  title  of  the  mortgagee  absolute. 

A  mortgagee  in  possession  may  do  no  act  to  prejudice  the  estate.  He  is  not 
authorized  to  cut  down  timber  and  commit  waste  upon  the  premises,  even  if 
the  proceeds  were  applied  to  the  extinguishment  of  the  debt. 

The  bill  charged,  that  the  agreement  for  redemption  was  intrusted  to  a  third 
person,  and  the  agent  of  the  defendant,  by  false  representations,  induced  him 
to  deliver  it  up,  contrary  to  the  wishes  and  without  the  knowledge  of  the 
complainant.  If  this  be  true,  the  complainant's  equity  would  not  be  impair- 
ed, but  he  would  be  entitled  to  the  aid  of  the  court. 

It  was  also  charged  that  defendant  was  committing  waste.  An  injunction  was 
allowed. 

The  answer  denied  the  fraud,  and  alleged  that  it  was  agreed  between  the  agents 
of  both  parties,  that  the  defendant  should  retain  the  land  and  pay  the  com- 
plainant a  sum  of  money  in  full  of  his  right  of  redemption,  and  the  agree- 
ment should  be  given  up  and  cancelled.  That  the  agreement  was  given  up, 
and  the  money  paid  on  complainant's  order  to  his  agent,  to  receive  it  in  full 
of  the  property.  This,  if  done  bonafide,  is  binding  on  the  parties,  and  the 
title  of  the  defendant  is  complete. 

These  allegations  in  the  answer  are  not  new  matter,  which,  according  to  the 
practice,  cannot  avail  the  defendant ;  but  directly  responsive  to  a  material 
allegation  of  the  bill,  and  a  complete  answer  to  the  charge  of  fraud — upon 
which  ground  the  injunction  was  dissolved. 


APRIL  TERM,  1832.  535 


Youle  et  ux.  v.  Richards  et  al. 


The  defendant,  in  denying  a  charge  against  him,  has  a  right  to  state  the  whole 
transaction. 


John  Youle,  one  of  the  complainants,  charges,  that  on  the 
20th  January,  1824,  he  was  seized  in  fee  of  a  large  tract  of  pine 
land,  in  the  county  of  Burlington,  valuable  only  for  the  timber 
growing  upon  it.  That  being  indebted  to  Samuel  Richards,  of 
Philadelphia,  in  five  hundred  dollars,  or  thereabouts,  Jesse  Evans, 
the  agent  of  Richards,  proposed  to  him  to  execute  to  Richards  a 
deed,  conveying  to  him  the  property  in  fee,  upon  the  understand- 
ing that  the  complainant  should  have  an  opportunity  'and  right 
to  pay  the  amount  of  the  debt  within  a  limited  time,  and  that 
the  agent  would  execute  a  written  agreement  by  which  the  right 
of  redemption  would  be  secured.  That  the  complainant  acceded 
to  the  proposition,  and  accordingly  executed  a  deed  in  fee  to  the 
defendant  for  the  property,  on  the  27th  February,  1824,  and  de- 
livered it  to  the  agent.  That  thereupon  the  agent  executed  an 
instrument  of  writing  and  delivered  it  to  the  complainant,  where- 
in it  was  expressed,  that  if  the  complainant  should  pay  the  de- 
fendant, Richards,  the  said  debt  of  five  hundred  dollars,  or 
thereabouts,  within  one  year,  then  the  deed  should  be  void,  other- 
wise to  remain  in  force.  That  being  desirous  to  redeem  the 
land,  he  entrusted  to  one  William  Wayne,  his  friend,  the  article 
of  agreement,  and  requested  him  to  tender  the  amount  of  the 
debt  to  Richards,  and  demand  the  deed.  Wayne  accordingly 
called  before  the  expiration  of  the  year,  and  tendered  him  the 
debt  and  interest,  and  demanded  the  delivery  of  the  deed.  Rich- 
ards refuse-!  to  deliver  the  deed  without  first  seeing  his  agent, 
but  told  Wayne  he  would  consider  the  tender  a  lawful  one. 
That  shortly  after,  the  complainant  called  on  Evans,  the  agent, 
and  tendered  him  the  amount  due.  He  refused  to  receive  it,  and 
said  it  must  be  paid  to  Richards,  though  the  complainant  in- 
formed him  at  the  time,  that  Richards  was  unwilling  to  receive 
it  v/lLbout  first  seeing  his  agent.  That  afterwards,  viz.  about 
the  1st  of  March,  1826,  Richard  Eayre,  esquire,  the  brother-in- 
law  of  the  complainant,  at  his  request,  called  on  Richards  and 
tendered  him  the  debt  and  interest;  that  he  refused  to  receive  it, 
and  said  the  right  of  redemption  was  extinguished.  That  in 


636  CASES  IN  CHANCERY. 

Youle  et  ux.  v.  Richards  et  al. 

March,  1826,  the  said  Jesse  Evans  called  on  William  Wayne, 
and  by  divers  misrepresentations  induced  him  to  deliver  up  the 
article  of  agreement ;  all  which  was  without  the  knowledge  of 
the  complainant.  That  before  the  expiration  of  the  time  limited 
for  the  redemption,  Richards  took  possession  of  the  land,  and 
committed,  and  still  continues  to  commit,  great  waste,  spoil  and 
destruction. 

The  complainant,  alleging  his  willingness  to  pay  the  money 
due,  prayed  an  injunction  to  restrain  the  commission  of  further 
waste ;  and  that  the  defendant  might  be  compelled  to  re-convey 
the  land  to  him  on  payment  of  the  amount  due,  and  to  ac- 
count for  the  rents  and  profits,  as  well  as  the  damage  to  the  pro- 
perty. 

On  filing  the  bill,  an  injunction  issued  to  stay  waste. 

An  answer  having  been  put  in  by  both  defendants,  it  is  moved 
to  dissolve  the  injunction,  on  the  ground  that  the  equity  of  the 
bill  is  denied. 

The  motion  was  submitted  without  argument. 

Wall,  for  the  motion  ; 
Southard,  contra. 

THE  CHANCELLOR.  The  complainant  has  set  out  an  equi- 
table right.  According  to  his  statement,  the  conveyance,  when 
coupled  with  the  agreement,  is,  in  equity,  nothing  more  than  a 
mortgage,  and  he  is  entitled  to  redeem  on  payment  of  the  amount 
due.  He  alleges  that  he  tendered  the  debt  and  interest,  first  to 
the  principal,  Richards,  and  then  to  Evans  the  agent,  and  that 
both  tenders  were  made  within  the  year.  Richards  declined  re- 
ceiving the  money  tendered  without  first  seeing  the  agent;  and 
the  agent,  when  called  on,  declined  receiving  it,  and  said  it  must 
be  paid  to  the  principal.  These  facts  are  substantially  admitted 
by  the  answer.  Richards  says  he  agreed  to  consider  the  tender 
lawful,  so  far  as  respected  the  amount  due,  but  was  unwilling 
to  receive  the  money,  or  give  any  receipt  for  it,  until  he  could 
hear  from  his  agent.  And  Evans  says,  that  shortly  after  this, 
but  at  what  particular  time  he  cannot  recollect,  the  tender  was 


APRIL  TERM,  1832.  537 

Youle  et  ux.  v.  Kichards  et  al. 

made  to  him,  and  that  he  declined  receiving  the  money,  because 
he  had  no  authority  to  take  it.  So  far  forth  the  equity  of  the 
bill,  is  admitted  by  the  defendants.  The  answer  alleges,  it  is 
true,  that  after  the  two  several  tenders  made  by  the  complain- 
ant, Evans,  the  agent,  called  upon  the  complainant  to  know  if 
he  still  wished  to  redeem ;  that  he  appeared  undecided,  and  pro- 
mised to  let  him  know  in  one  week,  which  he  failed  to  do ;  and 
that  after  the  lapse  of  more  than  a  month,  Evans,  as  the  agent 
of  Richards,  took  possession  of  the  property.  Admitting  these 
facts  as  stated,  I  do  not  see  that  they  affect  the  complainant's 
equity,  or  that  they  gave  the  defendant  a  right  to  take  possession, 
of  the  property  and  use  it  as  his  own.  The  fact  of  possession 
cannot  aid  him,  for  he  was  not  let  in  by  the  complainant. 

The  complainant  is  to  be  considered  in  this  court  in  the  light 
of  a  mortgagor.  His  situation  is  not  altered  by  the  fact  that 
Richards  (as  stated  in  the  answer)  originally  held  a  mortgage 
against  him,  and  that  upon  an  arrangement  made  between  them, 
the  complainant  agreed  to  give  him,  and  did  actually  execute 
and  deliver  to  him,  an  absolute  deed,  on  receiving  an  agree- 
ment in  writing  that  he  should  be  at  liberty  to  redeem  by  paying 
the  money  due  in  one  year.  The  conveyance  could  operate  on- 
ly as  a  mortgage  in  equity,  and  the  agreement,  so  far  as  it  re- 
stricts the  right  of  redemption  to  one  year,  is  void.  The  princi- 
ple is  well  settled,  that  all  such  restrictions -<are  void.  Whenever 
it  can  be  clearly  shown  to  be  the  intention  of  the  parties,  that 
real  estate,  when  conveyed,  shall  be  subject  to  redemption,  it  is 
considered  as  a  mere  security;  and  the  right  of  redemption  can- 
not be  confined  to  a  limited  time,  or  to  a  particular  class  of  per- 
sons. In  Kilvington  v.  Gardner,  1  Vern.  192,  it  was  decreed, 
that  although  the  condition  of  the  mortgage  was  to  redeem 
during  the  life  of  the  mortgagor,  the  heir  might  redeem  not- 
withstanding. In  Clinch  v.  Wiiherly,  Cas.  Temp.  Finch, 
376,  there  was  a  surrender  of  a  copyhold  estate  to  the  use  of 
A.  B.,  without  any  condition  expressed  in  it,  but  a  judgment 
was  given  at  the  same  time  as  a  further  security ;  and  it  was 
agreed  by  a  note  in  writing,  that  if  the  mortgagor  should  within 
a  twelve-month  pay  back  the  consideration  money  of  the  sur- 
render, that  he  would  yield  up  the  copyhold  and  acknowledge 


538  CASES  IN  CHANCERY. 

Youle  et  ux.  v.  Richards  et  al. 

eatisfaction  on  the  judgment.  The  court  considered  the  surren- 
der and  judgment  as  securities  only  for  the  repayment  of  the 
money,  and  decreed  a  redemption  sixteen  years  after  the  twelve 
months  had  expired.  "  Once  a  mortgage  and  always  a  mort- 
gage," is  an  ancient  equity  maxim,  of  approved  policy  and  wis- 
dom. There  would  have  been,  without  it,  a  door  open  for  the 
imposition  of  every  kind  of  restraint  on  the  equity  of  redemp- 
tion, and  thereby  the  borrower,  through  necessity,  would  have 
been  driven  to  embrace  any  terms,  however  unequal  or  cruel ; 
which  would  have  tended  greatly  to  the  furtherance  of  usury, 
and  the  conversion  of  the  equitable  jurisdiction  of  the  court  into 
an  engine  of  fraud  and  oppression.  In  the  chancery  of  New- 
York,  it  was  held,  that  every  contract  for  the  security  of  a  debt 
by  the  conveyance  of  real  estate,  is  a  mortgage;  and  all  agree- 
ments of  the  parties  tending  to  alter,  in  any  subsequent  event, 
the  original  nature  of  the  mortgage,  and  prevent  the  equity  of 
redemption,  is  void.  If  the  conveyance  is  a  mortgage  in  the 
beginning,  the  right  of  redemption  is  an  independent  incident, 
and  cannot  be  restrained  or  clogged  by  agreements :  Henry  v. 
Davis,  7  John.  C.  R.  42.  Such  an  agreement,  says  Fon- 
blanque,  would  be  contrary  to  natural  justice  in  the  creation  of 
it,  and  prove- a  general  mischief,  because  every  lender  would  by 
this  method  make  himself  chancellor  in  his  own  case,  and  pre- 
vent the  judgment  of  the  court:  2  Fonb.  259.  See  also  Fry  v. 
Porter,  1  Ch.  Ca.  141 ;  James  v.  Oades,  2  Fern.  402 ;  Seton  v. 
Slade,  7  Ves.  273;  and  1  Pow.  on  Mortg.  116,  et  seq. 

Considering  Richards,  the  defendant,  as  a  mortgagee  in  pos- 
session, he  is  not  authorized  to  cut  down  timber  and  commit 
waste  upon  the  premises.  No  act  prejudicial  to  the  estate  can 
be  justified  in  equity.  Even  if  the  proceeds  of  the  timber  cut 
were  appropriated  to  the  extinguishment  of  the  debt,  it  would  be 
very  questionable  policy  to  allow  the  mortgagee  to  pay  himself 
his  debt  out  of  the  property,  according  to  his  own  ideas  of  right: 
Harson  v.  Derby,  2  Vern.  392 ;  Farrant  v.  Lood,  3  Atk.  686 ;  1 
Pow.  on  Mortg.  188-9 ;  Eden  on  Inj.  118. 

Were  there  no  other  facts  in  the  case,  I  should  feel  no  difficul- 
ty in  retaining  the  injunction  until  the  hearing,  on  the  ground 
that  Richards  is  a  mere  mortgagee  in  possession,  and  therefore 


APRIL  TERM,  1832.  539 

Youle  et  ux.  v.  Eichards  et  al. 

not  justified  in  committing  waste  on  the  property ;  but  there  is 
one  circumstance  in  the  case  which  materially  varies  the  whole 
ground.  It  appears,  according  to  the  complainant's  own  show- 
ingj  that  the  instrument  of  writing  in  the  nature  of  a  defea- 
sance, which  was  given  for  the  safety  of  the  complainant,  was 
delivered  up  to  the  defendant,  Richards,  and  cancelled.  This,  if 
a  bona  fide  transaction,  is  binding  on  the  parties.  A  mortgagor 
may,  for  good  cause,  surrender  his  right  of  redemption,  and  ren- 
der the  mortgagee's  title  absolute.  This  is  an  every  day  trans- 
action, and  does  in  no  wise  impugn  the  principles  already  estab- 
lished. It  is  alleged,  however,  by  the  complainant,  that  this 
was  a  fraudulent  transaction,  and  ought  not  to  take  away,  or 
even  to  prejudice,  his  rights.  He  states  that  Evans,  one  of  the 
defendants,  knowing  that  the  original  article  of  agreement  was 
entrusted  to  William  Wayne,  called  on  Wayne  to  eifect  a  re- 
demption of  the  laud,  and,  by  making  divers  false  representa- 
tions, induced  him  to  deliver  up  the  article :  that  this  was  con- 
trary to  the  wishes  of  the  complainant,  and  he  was  ignorant  of 
it  until  some  time  afterwards.  If  this  be  true,  the  complainant's 
equity  is  not  impaired,  and  he  is  entitled  to  the  full  aid  of  the 
court,  not  only  to  protect  him  in  his  rights,  but  to  expose  the 
fraud  by  which  those  rights  are  sought  to  be  destroyed.  I  think, 
however,  the  answer  of  the  defendants  sufficiently  repels  the 
charge.  It  sets  forth,  that  after  the  complainant  neglected  to 
redeem  the  land,  the  business  remained^  unsettled,  and  that 
Richards  referred  it  to  Evans  to  make  such  arrangement  with 
Wayne,  who  was  entrusted  with  the  agreement,  and  who  was 
the  brother-in-law  of  the  complainant  and  acted  as  his  attorney 
and  agent  in  the  matter,  as  he  might  think  proper  and  right; 
and  it  was  accordingly  agreed  between  them,  that  Richards 
should  retain  the  land,  and  pay  to  Youle  the  sum  of  two  hun- 
dred and  fifty  dollars,  in  full  of  all  his  interest,  right  of  redemp- 
tion, or  other  claim  therein  ;  and  that  the  agreement  should  be 
cancelled  and  delivered  up.  This  arrangement  was  acceded  to 
by  Richards,  and  he  agreed  to  pay  the  money  to  Wayne  on  his 
producing  an  order  from  Youle,  the  complainant,  to  receive  the 
amount,  and  also  the  original  agreement.  That  accordingly, 
on  the  5th  September,  1826,  Wayne,  acting  on  behalf  of  Youle, 


540  CASES  IN  CHANCERY. 

Youle  et  ux.  v.  Richards  et  al. 

produced  the  agreement,  and  also  a  written  order  from  Youle, 
authorising  Richards  to  pay  to  Wayne  two  hundred  and  fifty  dol- 
lars, as  the  balance  in  full ;  whereupon  he  paid  the  money  to 
Wayne,  and  took  his  receipt,  stating  it  to  be  for  lands  near  Martha 
furnace,  purchased  by  Jesse  Evans  for  Richards'  account. 

This  appears  to  me  a  complete  answer  to  the  charge  of  fraud. 
And  it  is  not  new  matter,  which,  according  to  the  practice  of  the 
court  and  the  reason  of  the  thing,  cannot  avail  the  defendant  on 
this  motion.  It  is  directly  responsive  to  a  material  allegation  of 
the  bill.  The  defendant,  in  denying  a  charge  against  him,  has  a 
right  to  state  the  whole  transaction. 

In  making  this  arrangement,  it  appears  that  Wayne  undertook 
to  act  as  the  agent  of  Youle,  the  complainant;  who  now  insists 
that  Wayne  was  not  authorised.  But  we  are  to  take  the  defen- 
dant's answer  as  true,  upon  the  present  inquiry;  and  it  shows, 
not  only  that  W'ayne  acted  as  agent,  and  made  the  eontract  as  such, 
but  that  the  contract  was  not  completed  until  he  produced  the 
written  authority  of  Youle  himself  to  receive  the  stipulated  sum  of 
money,  and  also  produced  the  original  agreement  or  defeasance  to 
be  cancelled.  This  could  not  have  been  done  without  the  know- 
ledge and  approbation  of  the  complainant. 

As  the  case  js  presented  upon  the  bill  and  answer,  the  title  of 
the  defendant  is  complete,  and  there  is  no  ground  for  continuing 
the  injunction. 

Injunction  dissolved. 

CITED  in  Crane  v.  Bonnell,  1  Or.  Ch.  268  ;  Vanderhaize  v.  Hugues,  2  Beas.  245 ; 
Clark  v.  Condit,  3  C.  E.  Gr.  362 ;  Merritt  v.  Brown,  4  O.  E.  Gr.  289  ;  Crane 
v.  DeCamp,  6  C.  E.  Gr.  417. 


APRIL  TERM,  1832.  541 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

SAMUEL  LEGGETT  AND  JAMES  A.  BUETIS,  THE  PRESIDENT 
AND  DIRECTORS  OF  THE  FRANKLIN  BANK  OF  THE  CITY 
OF  NEW-YORK,  AND  JAMES  KENT,  RECEIVER  FOR  SAID 
BANK,  v.  THE  NEW-JERSEY  MANUFACTURING  AND  BANK- 
ING COMPANY,  AND  JAMES  VANDERPOOL,  SAMUEL  CASSE- 
DY  AND  ARCHER  GIFFORD,  RECEIVERS,  &c. 


The  powers  of  a  corporation  are,  strictly  speaking,  two-fold ;  those  that  are  de- 
rived from  express  grant,  and  those  that  are  incident  and  necessarily  apper- 
tain to  it,  whether  expressed  in  the  grant  or  not. 

The  power  to  make  by-laws,  to  make  and  use  a  common  seal,  and  the  right  to 
sue,  are  incident  to  every  corporation. 

In  modern  times,  it  has  been  usual  to  embrace  all  these  incidental  powers  in  the 
act  of  incorporation,  so  that  it  may  now  be  considered  a  general  rule,  that 
.the  powers  of  a  corporation  are  regulated  and  defined  by  the  act  which  gives 
it  existence. 

A  corporation  is  sjrictly  limited  to  the  exercise  of  the  powers  specifically  con- 
ferred upon  it ;  and  the  exercise  of  the  corporate  franchise  cannot  be  ex- 
tended beyond  the  letter  and  spirit  of  the  act  of  incorporation. 

Corporations,  like  natural  persons,  are  bound  by  the  acts  and  contracts  of  their 
agents,  done  and  made  within  the  scope  of  their  authority. 

The  president  and  cashier  of  a  bank,  as  such,  have  no  power  to  execute,  in  the 
name  and  behalf  of  the  corporation,  a  mortgage  or  conveyance  of  real  estate. 

What  are  the  appropriate  duties  and  powers  of  the  president  and  cashier  of  a 

bank. 

ik 
The  appearance  of  a  corporate  seal  to  an   instrument,  is  evidence  that  it  wag 

affixed   by  proper  authority.     A  mortgage,  signed   by  the   president  and 

cashier  of  a  bank,  and  sealed  with  the  corporate  seal,  is,  prima  facie,  duly 

and  lawfully  executed. 

But,  while  the  common  seal  is  held  evidence  of  the  assent  and  act  of  the  corpora- 
tion, the  court  may  look  beyond  the  seal,  and  inquire  in  what  manner,  and 
by  what  authority,  it  was  affixed  ;  and  it  may  be  shown  that  it  was  affixed 
without  proper  authority.  The  burden  of  proof  is  on  the  party  objecting. 

In  the  act  incorporating  The  New-Jersey  Manufacturing  and  Banking  Com- 
pany, the  company  are  declared  "  capable  in  law  of  purchasing,  holding 
and  conveying,  any  estate,  real  or  personal,  for  the  use  of  the  corporation/' 
This  right  is  afterwards  modified,  so  that  the  real  estate  which  it  may  hold 
shall  be  no  more  than  is  necessary  for  its  accommodation  in  the  transaction 
of  business,  or  such  as  may  be  acquired  upon  sale  or  otherwise,  for  the  pur- 
pose of  securing  debts  due  to  the  corporation.  The  banking  house  was  ne- 
cessary for  the  accommodation  of  the  company  in  the  transaction  of  its  bu- 


542  CASES  IN  CHANCERY. 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

siness.  It  was  lawfully  held,  and  might  be  lawfully  conveyed  for  the  use  of 
the  corporation. 

A  mortgage  is  a  conveyance;  it  is  an  alienation  of  the  estate;  and  whether  in 
payment  of  a  debt,  or  as  security,  direct  or  collateral,  it  was  for  the  use  of 
the  corporation,  and  might  lawfully  be  given.  In  giving  it,  the  company 
acted  within  their  authority. 

The  charter  of  the  New-Jersey  Manufacturing  and  Banking  Company  also  pro- 
vides, "that  all  the  affairs,  property  and  concerns  of  the  said  corporation, 
shall  be  managed  and  conducted  by  eleven  directors,  who  shall  be  elected 
annually ;  and  that  the  directors  for  the  time  being,  or  a  majority  of  them, 
shall  have  power  to  make  and  publish  such  by-laws,  rules  and  regulations, 
as  to  them  shall  appear  needful  and  proper,  touching  the  government  of  the 
said  corporation,  the  management  and  disposition  of  the  stock,  business  and 
effects  thereof,  and  all  such  others  as  may  appertain  to  the  concerns  of  said 
corporation.1'  By  this  provision,  the  general  power  over  the  affairs  of  the 
corporation,  was  committed  to  the  board  of  directors;  and  a  mortgage  exe- 
cuted under  the  authority  of  that  board,  would  be  valid. 

But  a  mortgage  signed  by  the  president  and  cashier,  with  the  corporate  seal 
affixed  by  them,  without  the  authority  or  concurrence  of  the  board  of  direc- 
tors, is  not  a  valid  instrument. 

Where  the  board  of  directors  appointed  "  o  finance  committee,"  with  "  a  general 
authority  in  collecting  and  providing  ways  and  means,  and  negotiating  finan- 
cial operations,  and  the  power  of  discounting," — the  powers  of  this  commit- 
tee were  purely  financial :  they  had  authority  to  discount  and  provide  ways 
and  means  to  carry  on  the  ordinary  operations  of  the  bank,  but  had  no  right 
to  mortgage  real  estate. 

The  controversy  in  this  case  is  between  the  receiver  of  the 
Franklin  Bank  of  the  city  of  New- York,  and  the  receivers  of 
the  New-Jersey  Manufacturing  and  Banking  company,  and 
grows  out  of  a  mortgage  alleged  to  have  been  given  by  the  last 
named  corporation,  to  Samuel  Leggett  and  James  A.  Burtis,  in 
trust  for  the  Franklin  Bank.  The  mortgage,  with  the  bond  ac- 
companying it,  bears  date  on  the  19th  January,  1828,  and  is 
for  the  sum  of  ten  thousand  dollars.  '  It  conveys  the  banking- 
house  and  property  at  Hoboken.  The  bill  is  filed  to  foreclose  the 
defendants'  equity  of  redemption,  and  for  a  sale  of  the  mortgaged 
premises.  The  receivers  have  answered.  They  admit  the  ex- 
istence of  the  bond  and  mortgage,  as  set  out  in  the  bill ;  but  al- 
lege by  way  of  defence,  that  Aaron  Ogden  Dayton,  the  presi- 
dent, and  William  Mutvn,  the  cashier,  who  executed  the  mort- 
gage, were  not  authorized  or  empowered  by  the  directors,  or  by 
the  act  of  incorporation,  or  in  any  other  manner,  to  mortgage, 


APRIL  TERM,  1832.  543 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

sell  or  convey  the  real  estate  of  the  bank ;  and  that  the  corporate 
seal  was  affixed  to  the  bond  and  mortgage,  and  the  same  were 
signed  by  the  president  and  cashier,  without  the  order  or  authority 
of  the  said  Manufacturing  and  Banking  company,  and  without  any 
vote  or  resolve  of  the  directors  ;  and  that  the  Franklin  Bank  had 
notice  of  the  fact.  They  also  deny  that  the  bond  and  mortgage 
are  the  deeds  of  the  corporation. 

There  are  other  matters  set  up  in  the  answer,  touching  the 
operation  of  the  bond  and  mortgage,  in  case  they  should  be  con- 
sidered valid  instruments,  which  it  is  not  necessary  here  to  men- 
tion. 

W.  Pennington,  for  the  complainant.  The  bill  in  this  case 
is  filed  to  foreclose  a  mortgage,  given  by  the  New-Jersey  Manufac- 
turing and  Banking  company,  (commonly  called  The  Hoboken 
Bank,)  to  Leggett  and  Burtis,  for  the  benefit  of  the  Franklin 
Bank.  A  decree,  pro  confesso,  was  taken  against  the  Hoboken 
Bank.  But  the  receivers  have  put  in  an  answer,  which  raises  two 
questions  : — \Vhether  the  bond  and  mortgage  are  valid  instru- 
ments; and,  if  valid,  whether  the  defendants  are  entitled  "to  the 
benefit  of  certain  deposits. 

1.  The  president  and  cashier,  and  all  the  directors  who  have 
spoken  to  the  point,  declare,  that  the  mortgage  was  necessary 
and  proper.  They  say,  it  would  have  been  ratified  by  the  board 
if  it  had  been  presented  to  them.  This  relieves  the  case  from 
all  imputation  of  fraud.  The  board,  it  appears,  seldom  met. 
They  appointed  a  finance  committee,  consisting  of  the  presi- 
dent, the  cashier,  and  one  of  the  directors ;  who  had  charge  of 
the  affairs  of  the  bank  generally,  and,  some  of  the  witnesses  say, 
did  all  the  business.  The  rule  of  corporations  is,  that  a  majority 
must  govern  ;  so  it  is  where  there  is  a  committee.  A  majority  of 
this  commitee  did  assent  to  the  mortgage.  The  president  and 
cashier  signed  the  bond  and  mortgage,  and  they  affixed  to  it  the 
corporate  seal,  which  is  the  highest  evidence  of  an  act  of  the  cor- 
poration. 

But  it  is  objected,  that  the  president  and  cashier  were  not  au- 
thorized to  make  the  mortgage  ;  that  it  was  done  without  the  or- 
der of  the  board  of  directors ;  and  that  this  was  known  to  Leg- 


544  CASES  IN  CHANCERY. 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

gett  and  the  Franklin  Bank.  This  position  we  deny.  There 
is  express  evidence  to  the  contrary.  The  subject  came  up  in  a 
negociation  between  Leggett  and  Dayton,  the  two  presidents. 
The  finance  committee  proposed  to  give  a  mortgage  for  ten  thou- 
sand dollars.  Some  difficulty  arose  about  the  ratification  of  the 
board.  Leggett  said  he  would  trust  to  a  subsequent  ratification  ; 
but  on  the  12th  January,  (a  week  before  the  execution  of  the 
mortgage,)  Dayton  wrote  to  Leggett  that  he  would  call  a  special 
meeting  of  the  board  with  reference  to  that  matter.  After  receiv- 
ing this  letter,  Leggett  had  no  farther  conversation  with  Day- 
ton until  after  he  received  the  mortgage,  (which  was  executed  on 
the  19th  January,  1828,)  and  he  had  a  right  to  suppose  that  the 
measure  had  received  the  sanction  of  the  board.  Besides,  the 
affidavit  of  the  cashier,  indorsed  on  the  back  of  the  mortgage, 
states,  that  it  had  received  the  sanction  of  the  board.  The  fact 
that  they  kept  no  minutes,  cannot  help  the  company.  When  a 
man  innocently  receives  a  bond  from  a  corporation,  Under  the 
corporate  seal,  and  signed  by  the  proper  officer,  it  is  good  against 
the  corporation,  especially  when  the  corporation  have  received  the 
benefit';  and  Leggett  says  the  money  was  paid.  The  corporate 
seal  itself,  (though  affixed  by  an  officer  de  facto,)  is  evidence  of  the 
assent  of  the  corporation:  Skin.  R.  2;  2  Baa.  Ab.  15;  1  Kyd  on 
C.  308  to  317. 

2.  If  the  mortgage  is  valid,  the  defendants  say  they  are  entitled 
to  a  reference,  to  ascertain  the  amount  of  a  demand  against  the 
Franklin  Bank  for  paper  deposited,  and  lost  for  want  of  prosecu- 
tion. "We  say  not.  When  paper  is  left  for  collection,  the  Bank 
is  bound  to  make  demand,  but  not  to  prosecute.  Again,  the  pro- 
ceeding here  is  in  rem.  It  admits  of  no  offset,  if  the  money  was 
advanced  on  the  mortgage,  as  we  say  it  was.  If  it  was  given  as  a 
mere  security  for  an  existing  demand,  then  there  must  be  a  refer- 
ence ;  Hop.  R.  270.  We  ask  that  the  mortgage  be  declared  valid, 
and  that  it  be  referred  to  a  master  to  ascertain  the  amount  due 
upon  it. 

E.  Van  Arsdale,  sen.,  for  the  defendants.  The  controversy- 
is  between  the  receivers  of  the  two  banks.  No  consideration 
passed  from  Leggett  and  Burtis,  the  mortgagees,  to  the  Hoboken 


APRIL  TERM,  1832.  545 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

Bank,  at  the  time  the  mortgage  was  given.  As  to  them,  it  is  void 
for  want  of  consideration.  But  there  is  evidence  that  the,  object 
was  to  secure  an  old  debt  to  the  Franklin  Bank.  The  declaration 
of  trust  is,  to  liquidate  the  account  of  William  Munn,  the  cashier 
of  the  Hoboken  Bank.  We  insist, 

1.  That  the  corporation  was  not  capable  of  making  the  mort- 
gage.    This  depends   upon  their  charter,  to  which  we  must  give 
the  proper  construction.     A  corporation  can  act  only  in  the  man- 
ner prescribed  by  their  charter.     If  they  depart  from  this,  they 
exceed    their   powers,    and    the   act   is  void:    2   Cranch,    166;  2 
Dow   P.    C.    523;    1   Peters,   71,    72;    2  D.   and   E.    171.     By 
their  charter,  the  New-Jersey  Manufacturing  and  Banking  com- 
pany have  a  limited  power,  of  purchasing,  holding  and  conveying 
real  estate,  for  certain  purposes ;  but  no  power  to  mortgage ;  such 
a  power  is  foreign  to  the  objects  of  the  institution.     It  is  a  bank. 
It  is  no  part  of  banking  business  to  mortgage  real  estate.     The 
proper  business  of  banking,  is  receiving  money  in  deposit,  discount- 
ing notes,  buying  and  selling  bills  of  exchange,  &c. ;  and  however 
convenient  it  might  be  to  mortgage,  at  certain  times  or  for  certain 
purposes,  yet  no  argument  drawn  from  convenience  can  enlarge  the 
powers  of  a  corporation  :  4  Peters  R.  169. 

2.  But  if  the  corporation  have  the  power,  we  say  the  mort- 
gage was  not  duly  executed.     The    business   and    affairs   of  the 
corporation  are,  by  the   charter,  to    be    managed  by  a  board   of 
eleven  directors.     The  corporate  seal  was  affixed  without  the  au- 
thority of  this  board.     The  president  says  there  was  no  previous 
order  of  the  board ;  the  cashier   says    there   was    none    that  he 
knows  of;  and  a  majority  of  the  directors  (who  have  been  ex- 
amined) say  the  same  thing.     We  are  in   possession  of  the  fact 
that  there  was  no  previous  order.     It  is  said,  however,  that  if  the 
directors  afterwards  confirmed   it,  it  is  sufficient.     But  no  such 
confirmation    appears.     On    the   contrary,  it   is    in  evidence  that 
there  was  no  meeting  of  the  board,  from  the  date  of  the  mort- 
gage,  (19th  January,   1828,)  to   the   4th   June   following.     The 
minutes  of  that  day  make  no   mention   of  the  mortgage,  and  be- 
fore that  time  the  Franklin  Bank  had  broke,  and  their  property 
was  in  the  hands  of  a  receiver.     We  have   therefore  established 
the  negative.     But  they  rely  on  the  affidavit  of  Munn,  the  cash- 

2M 


546  CASES  IN  CHANCERY. 

Leggelt  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

ier,  endorsed  on  the  mortgage;  which  states,  that  it  was  ap- 
proved by  the  board.  This  was  indorsed  five  days  after  the  date 
of  the  mortgage,  and  after  it  had  been  credited  on  the  books  of 
the  Franklin  Bank.  The  mortgage,  therefore,  was  not  taken  on 
that  ground.  But  this  is  no  affidavit.  It  is  not  subscribed,  or 
sworn  before  a  proper  officer.  It  amounts  only  to  a  declaration  ; 
and  if  the  president  and  cashier  had  both  declared,  at  the  time  of 
the  delivery  of  the  mortgage,  that  it  was  executed  and  the  seal 
affixed  by  order  of  the  board,  it  would  not  have  been  sufficient, 
because  this  was  an  act  not  within  the  scope  of  their  general  au- 
thority as  president  and  cashier  of  the  bank ;  and  the  corpora- 
tion would  not  have  been  bound  by  it :  3  Peters,  305.  There 
is,  therefore,  no  evidence  of  any  authority  to  execute  the  mort- 
gage, or  any  confirmation  of  it ;  and  affixing  the  seal  to  it,  with- 
out authority,  will  not  make  it  the  act  of  the  corporation:  12 
Mad.  423 ;  2  Ves.  and  B.  226 ;  5  John.  C.  R.  364.  Of  this 
want  of  authority  Leggett  was  aware,  because,  in  the  last  inter- 
view between  them,  when  Dayton  expressed  his  doubts  as  to  the 
power  of  the  president  and  cashier  to  make  the  mortgage  without 
the  authority  of  the  board,  he  answered,  that  if  they  would  execute 
it  he  would  take  it.  Nor  can  the  complainants  place  themselves  in 
the  situation  of  bona  fide  purchasers  without  notice;  as  the  Hobo- 
ken  Bank  have  not  had  the  benefit  of  the  mortgage  by  way  of  loan  ; 
the  object  being  merely  to  secure  an  old  debt.  The  mortgage,  too, 
was  not  duly  proved  to  entitle  it  to  registry  :  the  proof  was  made 
not  by  the  subscribing  witnesses,  in  proper  form,  or  before  a  proper 
officer.  But  if  it  is  valid,  we  are  entitled  to  a  reference  to  ascer- 
tain the  state  of  the  accounts. 

/.  H.  Williamson,  in  reply.  The  main  question  is,  whether 
the  mortgage  is  valid,  as  between  the  two  banks:  the  receivers 
stand  in  no  better  situation  than  the  banks  they  represent.  I  am 
surprised  at  the  first  position  taken  by  the  defendants'  counsel ; 
that  the  Hoboken  Bank  had  no  power  to  make  the  mortgage. 
Some  powers  are  incident  to  every  corporation,  and  especially  cor- 
porations aggregate,  without  being  expressed.  Other  powers  may 
be  considered  as  included  in  those  expressly  granted,  or  necessa- 
rily resulting  from  them.  The  bank  is  authorized  by  their  char- 


APRIL  TERM,  1832.  547 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

ter  to  purchase,  hold  and  convey  real  estate.  They  are  limited 
to  such  real  estate  as  may  be  necessary  for  their  accommodation 
in  the  transaction  of  their  business,  or  such  as  may  be  acquired 
in  a  particular  manner ;  but  there  is  no  restraint  as  to  the  dispo- 
sition of  it  when  lawfully  acquired.  It  was  lawful  for  them  to 
purchase  and  hold  the  banking  house.  The  power  of  alienation 
is  incident  to  the  power  of  purchasing  and  holding.  It  was 
therefore  lawful  for  them  to  sell  and  convey  their  banking  house. 
If  they  could  sell  and  convey  absolutely,  why  not  mortgage  it. 
A  mortgage  is  a  conveyance:  it  is  an  alienation  ;  and  being  made 
for  the  benefit  of  the  bank,  it  is  valid.  The  case  in  2  D.  and  E. 
171,  is  not  applicable:  that  was  a  case  of  trustees,  and  not  of  a 
corporation. 

In  the  second  place,  it  is  said  we  have  not  proved  the  due  exe- 
cution of  the  mortgage.  If  it  was  not  duly  proved  at  the  time 
of  recording,  it  is  sufficiently  proved'now;  and  if  there  has  been 
no  transfer,  the  mortgage  is  good  nevertheless.  It  is  not  neces- 
sary to  prove  the  signature  of  the  president ;  it  is  sufficient  to 
prove  the  common  seal,  and  the  affixing  it  to  the  instrument  by 
the  proper  officer.  Nor  is  it  necessary  to  prove  the  prior  assent 
of  the  corporation  ;  that  is  implied  and  proved  by  the  corporate 
seal.  The  seal  is  the  highest  evidence  of  the  act  of  the  corpo- 
ration. If  the  seal  was  improperly  put  to  the  instrument;  if  it 
was  put  by  a  stranger,  this  matter  must  he  shoVn  by  the  corpo- 
ration. The  onus  probandi  is  on  them.  But  when  the  seal  is 
put  by  the  proper  officer,  who  acts  under  a  general  authority,  it 
is  conclusive  evidence  of  the  assent  of  the  corporation,  and  they 
are  bound  :  Kyd  on  C.  267-8.  Otherwise  a  corporation  keep- 
ing, no  minutes,  might  commit  great  frauds.  Here  the  company 
kept  no  regular  minutes.  They  had  no  book  of  minutes.  The 
minutes  of  June,  1828,  was  on  a  slip  of  paper  only,  in  the  hand- 
writing of  the  president.  How  then  is  it  proved  that  there  was 
no  order  sanctioning  the  mortgage?  But  an  order  was  unneces- 
sary. Affixing  the  seal  by  the  head  of  the  corporation  is  sufficient. 
A  deed  entered  into  by  the  Dean,  will  bind  the  Chapter:  2  Atk. 
JR.  45.  The  case  from  Ves.  and  B.  does  not  apply. 

The  directors  who  have  been  examined,  all  say,  it  was  neces- 
sary for  the  bank  to  give  the  mortgage.  Nothing  was  wanting 


548  CASES  IN  CHANCERY.    . 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

but  mere  form.  The  mortgage  was  for  banking  purposes.  It 
went  to  the  use  of  the  bank :  they  obtained  a  large  credit  by  it, 
and  have  had  the  benefit  of  it.  They  ought  to  have  affirmed  or 
disaffirmed  the  transaction.  Under  such  circumstances,  a  court  of 
equity  would  have  decreed  a  mortgage  to  be  given :  Kyd  C.  312, 
316. 

But  it  is  said  that  Leggett  knew  the  president  and  cashier  were 
not  authorized  to  execute  the  mortgage.  He  thought  it  immate- 
rial whether  the  approbation  of  the  directors  was  prior  or  subse- 
quent to  the  execution,  and  from  Dayton's  letter  he  had  a  right 
to  presume  that  it  had  been  obtained.  We  pray  a  decree  for  the 
amount  due  on  the  mortgage. 

THE  CHANCELLOR.  Out  of  the  matters  of  defence,  as  above 
stated,  two  questions  have  been  raised.  The  first  is,  whether  the 
New- Jersey  Manufacturing  and  Banking  company  had  any  author- 
ity to  give  a  mortgage  on  their  property. 

Upon  this  part  of  the  case,  I  apprehend  there  can  be  no  room 
for  serious  doubt.  The  powers  of  a  corporation  are,  strictly 
speaking,  two-fold  :  those  derived  from  express  grant,  and  those 
that  are  incident,  and  necessarily  appertain  to  it,  whether  ex- 
pressed in  the  grant  or  not.  The  power  to  make  by-laws  is  in- 
cident, for  a  corporation  must  necessarily  have  laws  to  regulate 
its  proceedings.  Of  the  same  character  is  the  power  to  make 
and  use  a  common  seal  ;  for  the  law  anciently  was,  that  a  cor- 
poration could  act  and  speak  only  by  its  common  seal.  The 
right  to  sue  is  also  incident:  2  Bac.  Ab.  15,  Corporations.  In 
more  modern  times  it  has  been  usual  to  embrace  all  these  inci- 
dental powers  and  privileges  in  the  act  of  incorporation  ;  so  that 
it  may  now  be  considered  as  a  pretty  general  rule,  that  the  powers 
of  a  corporation  are  regulated  and  defined  by  the  act  which  gives 
it  existence. 

In  the  act  incorporating  the  New-Jersey  Manufacturing  and 
Banking  company,  the  company  is  declared  capable  in  law  of 
purchasing,  holding  and  conveying  any  estate,  real  or  personal, 
for  the  use  of  the  corporation.  This  right  is  afterwards  modified, 
so  that  the  real  estate  which  it  may  hold  shall  be  no  more  than 
is  necessary  for  its  immediate  accommodation  in  the  transaction 


APRIL  TERM,  1832.  549 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

of  business,  or  such  as  it  may  have  acquired  by  sale  or  otherwise 
for  the  purpose  of  securing  any  debt  or  debts  due  to  the  said  cor- 
poration. All  real  estate  thus  held  may  be  conveyed  for  the  use 
of  the  corporation.  The  property  embraced  within  the  mortgage 
now  in  question,  was  the  banking  house  and  lot  at  Hobokeu,  where 
the  bank  was  located  according  to  the  terms  of  the  charter ;  and  it 
was,  in  the  words  of  the  act,  necessary  for  the  immediate  accom- 
modation of  the  company  in  the  transaction  of  their  business. 
It  was,  then,  lawfully  held,  and  might  be  lawfully  conveyed  for 
the  use  of  the  corporation.  A  mortgage  is  a  conveyance,  or  deed. 
It  is  an  alienation  of  the  estate,  and  there  is  no  reason  to  doubt 
that  this  mortgage  was  made  for  the  use  of  the  corporation. 
Whether  given  in  payment  of  a  debt,  or  as  security  either  direct 
or  collateral,  it  is  not  important  now  to  inquire.  The  question  is, 
whether  a  mortgage  could  legally  be  given;  and  I  think  we 
need  go  no  further  than  to  the  charter  itself  for  a  satisfactory 
answer. 

The  argument,  that  this  company  was  incorporated  for  banking 
purposes,  and  that  the  legitimate  objects  of  such  a  company  are  to 
discount  paper,  and  deal  in  bills  of  exchange  and  promissory  notes, 
and  not  in  lands  or  real  estate,  is  just.  No  bank  should  be  allowed 
to  speculate  in  real  property.  It  is  contrary  to  the  spirit  and 
design  of  such  institutions,  and  is  liable  to  abuse.  It  always 
results  in  injury,  and  sometimes  in  ruin.  .But  the  argument  does 
not  apply  to  this  case.  Here  was  no  speculation  in  lands  or 
houses.  The  property  was  necessary  for  the  lawful  purposes  of 
the  company,  and  held  for  those  purposes.  If  the  company  saw 
fit  to  mortgage  it,  for  their  safety  or  the  advancement  of  their 
interests,  they  acted  within  their  authority,  and  having  acted  in 
good  faith  for  the  best  interests  of  the  institution,  it  is  not  for  the 
receivers  to  come  in  and  question  the  proceeding. 

This  view  is  an  answer  to  the  authorities  cited  by  the  counsel 
of  the  defendants  on  this  branch  of  the  case.  They  all  go  to 
the  establishment  of  the  principle,  that  corporations  can  act  only 
in  the  manner  prescribed  by  law,  and  that  no  argument  drawn 
from  convenience  can  enlarge  their  corporate  powers.  This  doc- 
trine is  admitted  in  its  fullest  extent,  and  in  this  age  of  incorpo- 


550  CASES  IN  CHANCERY. 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

rations  should  be  strictly  adhered  to.  I  concur  in  the  opinion  of 
the  supreme  court  of  the  United  States,  as  pronounced  by  justice 
M'Lean,  in  the  case  of  Beatty  v.  the  Lessee  of  Knowler,  4  Pet.  R. 
168,  that  a  corporation  is  strictly  limited  to  the  exercise  of  the 
powers  specifically  conferred  on  it;  and  that  the  exercise  of  the 
corporate  franchise,  being  restrictive  of  individual  rights,  cannot 
be  extended  beyond  the  letter  and  spirit  of  the  act  of  incorpora- 
tion. 

Considering  that  the  banking  company  had  power  to  make  this 
mortgage,  I  proceed  to  inquire,  in  the  next  place,  in  what  way  it 
was  executed,  and  whether  the  company  are  bound  by  it.  It  ap- 
pears by  the  testimony,  that  the  mortgage  was  signed  by  the  presi- 
dent and  cashier  of  the  New-Jersey  Manufacturing  and  Banking 
company,  and  that  it  was  sealed  with  the  corporate  seal.  This  is, 
prima  facie,  a  due  and  lawful  execution  of  the  instrument.  The 
appearance  of  the  common  seal  of  a  corporation  to  an  instrument, 
is  evidence  that  it  was  affixed  by  proper  authority  :  Skin.  llep.  2; 
1  Kyd,  268  ;  The  President,  Managers  and  Co.  of  the  Berks  and 
Dauphin  Turnpike  road  v.  Meyer,  6  Serg.  and  Rawl.  12 ;  The 
Baptist  Church  v.  Mulford,  3  Halst.  183;  Angell  and  Ames  on 
Corporations,  115. 

But  while  the  common  seal  is  held  to  be  evidence  of  the  assent 
and  act  of  the  corporation,  it  is  not  conclusive.  It  may,  never- 
theless, be  shown  that  it  was  affixed  without  proper  authority. 
The  matter  is  susceptible  of  investigation.  The  burden  of  proof 
is  thrown  upon  the  objecting  party  ;  and  he  will  be  required  to 
produce  such  evidence  as  shall  be  clear  and  satisfactory  :  Mayor 
and  Commonalty  of  Colchester  v.  Lowton,  1  Ves.  and  B.  226. 
And  in  the  case  of  St.  Mary's  Church,  7  S.  and  Rawl.  530, 
chief  Justice  Tilghman  considers  that  the  court  has  an  undoubt- 
ed right  to  look  beyond  the  seal,  and  inquire  in  what  manner, 
and  by  what  authority,  it  was  affixed.  After  supposing  a  num- 
ber of  cases  in  wh'ch  great  injury  might  arise  from  the  adoption 
of  a  contrary  principle,  he  adds,  -that  in  all  these  cases,  it  is  too 
clear  to  admit  of  argument,  that  the  court  would  do  flagrant 
injustice,  if  it  suffered  the  seal  to  preclude  an  examination  of  the 
truth. 


APRIL  TERM,  1832.  551 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

In  the  case  before  us,  it  is  alleged  by  the  defendants,  that  the 
seal  was  affixed  without  authority,  by  the  president  and  cashier. 
Believing  this  to  be  a  matter  that  may  properly  be  set  up  by 
these  defendants,  I  propose  to  inquire  in  what  way,  by  whom, 
and  under  what  authority,  the  corporate  seal  was  affixed.  And 
for  this  purpose  it  will  be  necessary  to  look  into  the  facts  of  the 
case. 

The  former  president  and  cashier,  and  some  of  the  former 
directors  of  the  bank,  have  been  examined  as  witnesses.  They 
give  a  lamentable  account  of  the  mode  in  which  things  were 
managed  in  the  institution.  There  was  a  board  of  directors  ap- 
pointed annually;  but  they  paid  little  or  no  attention  to  the  con- 
cerns of  the  bank.  Some  of  them  did  not  know  of  their  ap- 
pointment. They  had  no  stated  times  of  meeting  for  consulta- 
tion or  inquiry ;  and  when  they  did  meet,  there  was  no  record 
kept  of  their  proceedings.  For  a  time,  the  whole  management 
of  affairs  was  committed  to  the  president  and  cashier;  and  the 
president  says,  the  principal  business  was  done  by  the  cashier ; 
in  cases  of  difficulty,  the  president  was  consulted.  In  1827,  the 
board  met  twice.  At  one  of  these  meetings  they  appointed  a 
finance  committee.  This  committee  was  in  existence  when  the 
bond  and  mortgage  were  given.  The  bond  and  mortgage  were 
signed,  and  the  corporate  seal  affixed,  by  the  president  and  cash- 
ier, without  the  concurrence  of  the  board  of  directors.  There 
was  no  assembling  of  the  board  for  that  purpose,  and  the  ques- 
tion was  never  submitted  to  them.  The  company  kept  their  ac- 
counts in  New- York  with  the  Franklin  Bank.  In  the  latter  part 
of  1827,  and  the  beginning  of  1828,  they  were  found  to  be  con- 
siderably indebted  to  that  bank,  and  were  pressed  by  Mr.  Leg- 
gett, the  president,  to  give  a  mortgage.  In  January,  1828,  he 
had  an  interview  with  Mr.  Dayton,  and  renewed  the  request. 
Mr.  Dayton  expressed  a  perfect  willingness  to  secure  the  Frank- 
lin Bank,  but  at  the  same  time  suggested  a  doubt  whether  a 
bond  and  mortgage  given  without  the  previous  authority  of  the 
board,  would  be  valid.  An  attempt  was  made  to  get  a  meeting 
of  the  directors,  and  it  failed.  At  length,  on  the  19th  of  the 
month,  the  boncl  and  mortgage  were  executed  by  the  president 
and  cashier,  and  the  corporate  seal  affixed ;  after  which  the  pa- 


552  CASES  IN  CHANCERY. 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

pers  were  delivered  to  Mr.  Leggett,  for  the  use  of  the  Franklin 
Bank.  This  is  a  brief  history  of  the  principal  facts  connected  with 
the  transaction. 

By  the  act  incorporating  the  New-Jersey  Manufacturing  and 
Banking  company,  it  is  provided,  that  all  the  affairs,  property  and 
concerns  of  the  corporation,  shall  be  managed  and  conducted  by 
eleven  directors,  who  shall  be  elected  annually;  and  that  the  di- 
rectors for  the  time  being,  or  a  majority  of  them,  shall  have  power 
to  make  and  prescribe  such  by-laws,  rules  and  regulations,  as  to 
them  shall  appear  needful  and  proper,  touching  the  government  of 
the  said  corporation,  the  management  and  disposition  of  the  stock, 
business  and  effects  thereof^  and  all  such  other  matters  as  may  ap- 
pertain to  the  concerns  of  said  corporation. 

From  this  it  appears  that  the  general  power  over  the  affairs  of 
the  corporation,  was  committed  to  the  board  of  directors,  to.be 
chosen  by  the  stockholders.  If  the  mortgage  had  been  executed 
under  the  authority  of  that  board,  it  would,  in  the  judgment  of  this 
court,  have  been  valid.  But  the  evidence  shows  it  was  not  so  exe- 
cuted. The  board  took  no  order  or  vote  upon  the  subject ;  they 
have  not  consented,  and  many  of  them  knew  nothing  of  the  trans- 
action. If,  then,  the  mortgage  and  bond  could  not  legally  be  exe- 
cuted without  the  direct  assent  or  order  of  the  board,  they  cannot 
be  valid  instruments,  even  against  the  corporation,  for  such  assent 
or  order  was  never  directly  given. 

But  it  is  said  that  the  seals  were  affixed  to  these  instruments  by 
the  president  and  cashier,  the  openly  acknowledged  agents  of  the 
company ;  and  if  they  have  abused  their  trust,  third  persons  ought 
not  suffer  by  their  misconduct. 

This  leads  to  the  important  inquiry,  how  far  these  incorpora- 
ted companies  are  bound  by  the  acts  of  their  agents.  Upon  this 
subject,  it  was  earnestly  contended  on  the  part  of  the  complain- 
ants, that  in  this  instance,  the  president  and  cashier  being  recog- 
nized as  the  agents  and  servants  of  the  corporation,  and  being 
intrusted  with  the  care  of  the  corporate  seal,  their  acts  should 
bind  the  corporation,  provided  they  were  such  acts  as  the  corpo- 
ration itself  might  lawfully  do,  or  order  to  be  done:  that  within 
this  limit,  strangers  or  third  persons  are  not  bound  to  inquire 
whether  the  mode  of  doing  the  acts  was  according  to  the  internal 


APRIL  TERM,  1832.  553 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

regulations  of  the  company  or  not.  There  is  much  plausibility 
iu  the  argument;  and,  considering  that  incorporations  are  fast 
spreading  over  the  land,  and  mingling  themselves  with  all  the 
ordinary  concerns  of  life,  it  may  afford  matter  for  profitable  in- 
quiry to  those  whose  province  it  is  to  create  these  impersonal 
and  artificial  bodies.  But  the  rule  of  law  appears  to  be  settled 
on  this  subject,  and  it  is  not  for  me  to  alter  it.  It  is  this  :  that 
corporations,  like  natural  persons,  are  bound  only  by  the  acts 
and  contracts  of  their  agents,  done  and  made  within  the  scope 
of  their  authority  :  Clark  v.  Corporation  of  Washington,  12 
Wheat.  40;  Bank  of  the  U.  S.  v.  Dandridge,  12  Wheat  64; 
Essex  Turnpike  Corp.  v.  Collins,  8  Mass.  Rep.  299 ;  Angell 
and  Ames  on  Corp.  170.  Thus,  if  a  restricted  authority  is 
given  to  a  special  agent,  a  contract  made  by  him  without  its 
limits,  will  impose  no  obligation  on  his  constituent.  Where  one 
was  appointod  the  agent  of  a  turnpike  corporation,  to  contract 
for  making  a  certain  portion  of  the  road,  with  the  restriction  that 
one  third  of  the  payment  on  such  contracts  was  to  be  made  in 
shares  in  the  road,  it  was  held  that  a  contract  made  by  him 
without  this  stipulation  would  not  bind  the  corporation  :  Hayden 
et  al.  v.  Tlie  Middlesex  Turnpike  Corporation,  10  Mass.  Rep. 
403. 

Taking  this  as  the  true  principle,  it  is  incumbent  on  the  defend- 
ants to  satisfy  the  court  that  the  president  and  cashier  acted  beyond 
their  authority. 

They  acted  either  as  general  or  special  agents ;  or  in  other 
words,  either  in  virtue  of  their  general  power,  ex  officio,  or  of 
some  special  authority.  If  in  virtue  of  their  general  power  as 
officers  of  the  bank,  they  exceeded  it,  in  undertaking  to  convey 
the  real  property  of  the  corporation.  The  cashier  is  usually  in- 
trusted with  all  the  funds  of  a  bank,  in  cash,  notes,  bills,  &c., 
to  be  used  from  time  to  time  for  the  purposes  of  the  bank.  He 
receives  directly,  or  through  the  subordinate  officers,  all  moneys 
and  notes.  He  draws  checks,  from  time  to  time,  for  moneys, 
wherever  the  bank  has  deposits.  In  short,  he  is  the  executive 
officer  through  whom,  and  by  whom,  the  whole  moneyed  opera- 
tions of  the  bank,  in  paying1  or  receiving  debts,  or  discharging 
or  transferring  securities,  are  to  be  conducted  :  Fleckner  v.  U.  S. 


554  CASES  IN  CHANCERY. 

Legget  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

Sank,  8  Wheat.  360,  361  ;  12  Ser.  and  Rawl  265.  It  is,  per- 
haps, more  difficult  to  define  with  precision  the  powers  of  the  presi- 
dent of  a  bank;  but  I  believe  it  may  be  said  with  safety,  that 
they  are  not  so  important  as  those  of  the  cashier.  He  is  the  presi- 
dent of  the  board  of  directors,  but  as  such  does  not  possess  the 
powers  of  the  board.  He  is  a  member  of  the  board,  and  in  the  ab- 
sence of  that  body  is  intrusted  with  the  general  supervision  of  the 
concerns  of  the  bank. 

I  think  it  quite  clear,  that  the  president  and  cashier,  as  such, 
had  no  power  to  execute,  in  the  name  and  in  behalf  of  the  cor- 
poration, the  instruments  in  question.  Their  authority,  although 
extensive,  has  limits.  It  may  extend  to  all  the  ^ordinary,  and 
even  extraordinary  financial  operations  of  the  company  ;  but  it 
can,  by  no  presumption,  be  taken  to  include  the  right  to  execute 
a  conveyance  of  real  estate.  This  is  a  transaction  of  rare  occur- 
rence. It  is  not  within  the  range  of  banking  operations.  It  is 
the  most  solemn  act  that  the  corporation  can  perform  ;  and  it 
would  be  dangerous  to  the  community,  and  to  corporations  them- 
selves, if  the  president  and  cashier,  the  ordinary  officers  of  the 
corporation,  could  exercise  a  right  of  this  character,  in  virtue  of 
the  general  powers  of  their  office.  Admitting  that,  in  this  in- 
stance, in  consequence  of  the  neglect  or  inattention  of  the  board 
of  directors,  the  duties  of  the  officers  were  enlarged,  and  greater 
powers  were  committed  to  them,  not  expressly,  but  permissively, 
they  would  not  be  authorized  to  do  an  act  of  this  kind.  If  they 
were  even  general  agents  for  this  corppration,  without  limit  from 
common  usage,  or  the  prescribed  by-laws  of  the  company,  they 
would  not  have  been  authorized  to  sell  and  convey  the  real  estate 
of  the  company  without  express  authority  :  Stow  v.  Wyse,  1  Conn. 
Eep.  219. 

If,  then,  these  officers  had  no  authority,  ex  ojficio,  to  make 
the  mortgage,  had  they  any  special  .authority  ?  On  this  point, 
also,  the  defendants  are  bound  to  satisfy  the  court,  at  least  so  far 
as  to  overcome  the  presumption  of  law  that  now  rests  against 
them.  The  only  legitimate  source  whence  this  authority  could 
emanate,  was  the  board  of  directors.  It  is  manifest  none  had 
been  derived  from  that  source.  There  had  been  no  meeting  for 
that  purpose.  The  matter  had  never  been  submitted  to  them. 


APRIL  TERM,  1832.  555 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

TLe  testimony  of  Mr.  Dayton  places  this  beyond  a  doubt.  In 
his  letter  to  Mr.  Leggett  of  the  12th  of  January,  1828,  he  says, 
"Upon  further  reflection,  we  (meaning  the  cashier  and  himself) 
are  decidedly  of  opinion  that  the  previous  authority  of  the  board 
of  directors  should  be  obtained  for  carrying  into  effect  so  im- 
portant an  operation."  Prior  to  that  date,  then,  there  was  no 
authority  from  the  board;  and  the  same  witness  testifies  that 
there  was  none  afterwards,  and  before  the  execution  of  the 
mortgage.  This  appears  to  be  conclusive  upon  this  part  of  the 
case. 

It  was,  however,  contended  by  the  counsel  of  complainant, 
that  there  was  a  finance  committee  appointed  by  a  lawful  meet- 
ing of  the  board;  and  that  the  giving  of  the  mortgage  was  ap- 
proved by  them,  or  a  majority  of  them,  acting  in  behalf  of  the 
board.  Without  giving  any  opinion  on  the  nature  and  extent  of 
the  powers  that  might  lawfully  be  given  to  such  a  committee,  [ 
shall  inquire  into  those  that  were  actually  given  or  intended  to  be 
given,  and  how  far  they  were  exerted  in  the  transaction  of  this 
business. 

Aaron  Peck  says,  the  committee  of  finance  was  appointed  by 
a  legal  board,  and  had  "  a  general  authority  in  collecting,  and 
providing  ways  and  means,  and  regulating  financial  operations; 
they  had  also  the  power  of  discounting."  Cyrus  Jones  testifies, 
that  he  was  present  when  the  finance  committee  was  appointed. 
They  were  appointed  to  get  the  dfebts  due  irom  Barton  and  others 
settled  up :  they  were  to  have  the  general  care  of  the  funds,  and 
the  power  of  discounting  at  Hoboken.  In  another  part  of  his 
examination  he  says,  great  powers  were  given  to  the  committee. 
Whether  the  power  thus  given,  according  to  the  recollection  of 
either  or  both  these  witnesses,  would  warrant  the  committee  in 
giving  a  mortgage  on  the  banking  property,  was  considered 
doubtful.  Peck,  who  was  one  of  the  committee,  thinks  it  would 
not.  His  idea  is,  that  the  committee  would  have  had  the  right 
to  make  the  contract,  but  that  it  should  have  been  sanctioned  by 
the  board  ;  and  that  they  were  not  legally  competent  to  mort- 
gage the  bank,  without  the  approbation  of  the  directors. 

The  powers  of  this  committee  were  purely  financial.  They 
had  authority  to  discount  and  to  provide  ways  and  means  to  car- 


556  CASES  IN  CHANCERY. 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

ry  on  the  ordinary  operations  of  the  bank;  but  they  had  no  right, 
as  I  conceive,  to  mortgage  the  real  property.  But  let  us  look  a 
little  further,  and  see  who  composed  this  committee,  and  whether 
the  giving  of  the  mortgage  was  actually  sanctioned  by  them. 
Peck  says  that  the  president  and  himself  were  two,  and  he  thinks 
that  John  PI.  Hill,  the  cashier  of  the  Franklin  Bank,  was  the 
third;  but  of  this  he  is  not  positive.  He  states  further,  as  his 
impression,  that  he  and  Mr.  Dayton  approved  of  them  ;  but  states 
nothing  about  any  consultation  with  Hill.  Mr.  Dayton  in  his 
testimony,  makes  no  mention  of  this  finance  committee. 

How,  then,  stands  the  case  on  this  point.  The  appointment 
of  the  committee  is  proved.  Who  composed  the  committee  is  a 
matter  of  some  doubt;  whether  a  majority  of  the  committee  ap- 
proved of  the  mortgage  is  also  doubtful ;  and  there  is  no  evidence 
of  any  consultation  with  Hill,  if  he  was  in  truth  a  member.  To 
all  these  matters  of  difficulty  is  to  be  added,  the  more  serious 
one,  that  the  powers  of  the  committee  were  insufficient  to  authorize 
the  proceeding. 

The  defendants  have,  then,  shown  satisfactorily,  that  the 
president  and  cashier  of  the  New-Jersey  Manfacturing  and 
Banking  company,  were  not  authorized  by  any  previous  vote  or 
order  of  the  board  to  affix  the  corporate  seal  to  those  instruments; 
that  they  had  no  authority  to  do  it  in  virtue  of  their  offices,  or 
of  the  direction  or  approbation  of  any  other  lawfully  authorized 
agents  of  the  board.  From  all  which,  I  am  drawn  to  the  con- 
clusion that  the  bond  and  mortgage  were  not  lawfully  or  properly 
executed  by  those  officers.  In  coming  to  this  conclusion,  I 
wish  to  be  understood  in  a  legal  sense,  and  not  as  impeaching 
the  morality  of  the  transaction.  There  is  every  reason  to  believe 
the  mortgage  was  given  in  good  faith. 

If  the  view  taken  of  this  case  be  correct,  the  bond  and  mort- 
gage were  not,  at  the  time  of  their  execution,  available  as 
against  the  corporation.  Still,  they  were  not  void  in  themselves. 
A  corporation  may  approve  of  the  unauthorized  acts  of  its  agents, 
and  make  them  their  own.  This  may  be  done  directly  or  indi- 
rectly. It  may  be  shown  by  express  acknowledgment  or  act, 
or  it  may  be  inferred  from  circumstances.  "  By  the  whole  course 
of  decisions  in  this  country,  corporations,  in  their  contracts,  are 


APKIL  TERM,  1832.  557 

Leggett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

placed  upon  the  same  footing  with  natural  persons,  open  to  the 
same  implications,  and  receiving  the  benefit  of  the  same  presump- 
tions : "  Angell  and  Ames,  132  ;  Sank  of  Columbia  v.  Patterson, 
7  Crunch,  306;  Randall  v.  Van  Veghten  and  al.  19  John.  65; 
Bank  of  Alexandria  v.  Selon,  1  Pet.  299. 

It  remains,  then,  to  inquire,  whether  the  New-Jersey  Manufac- 
turing and  Banking  company,  acting  through  iheir  lawfully  author- 
ized agents  in  that  behalf,  did  in  any  manner  or  way  ratify  or 
sanction  this  act  of  the  president  and  cashier. 

Upon  this  subject  there  is  but  little  evidence.  There  was  no 
meeting  of  the  board  until  June,  1828  ;  at  which  time  the  Frank- 
lin Bank  had  closed  its  doors,  and  its  effects  were  in  the  hands 
of  a  receiver.  There  is  a  written  minute  of  the  proceedings  of 
that  meeting,  in  the  hand-writing  of  the  president.  It  contains 
nothing  in  relation  Jo  this  bond  and  mortgage.  There  was  no 
act  done  at  that  meeting,  so  far  as  can  be  ascertained,  which 
can  be  construed  into  a  ratification.  There  were  present,  ori- 
ginally, A.  O.  Dayton,  Paul  Tucker,  Aaron  Peck,  Joseph  A. 
Halsey,  Abraham  Winans,  and  Cyrus  Jones.  Three  new  di- 
rectors were  afterwards  chosen  to  fill  vacancies,  and  took  their 
seats ;  but  there  is  nothing  in  the  evidence  to  lead  to  the  belief 
that  the  subject  of  the  bond  and  mortgage  was  brought  before 
the  board,  or  that  it  came  in  any  way  under  their  notice,  or  was 
even  made  the  subject  matter  of  conversation.  On  the  contrary, 
Cyrus  Jones,  who  was  present  at  the  meeting,  expressly  says, 
that  he  never  heard  of  the  bond  and  mortgage  until  within  a 
year  from  the  time  of  his  examination,  which  was  in  September, 
1831.  And  Joseph  A.  Halsey,  who  was  also  present,  says,  he 
never  heard  of  them  until  he  heard  of  the  controversy  about 
them.  It  is  evident,  then,  that  the  instruments  were  not  con- 
firmed at  that  meeting.  The  board  consisted  of  thirteen  mem- 
bers. A  majority  of  those  who  constituted  the  board  in  1827-8, 
have  been  examined,  and  no  one  of  them  proves  any  act  of  con- 
firmation by  the  board.  Four  of  them  testify  that  they  never 
heard  of  the  bond  and  mortgage  until  a  long  time  after  they  were 
given. 

There  are  instances  where  a  board  of  directors  may  bind  them- 
selves, or  accept  of  a  contract,  by  a  tacit  and  implied  assent : 


558  CASES  IX  CHANCERY. 

Legget*  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

12  Wheat.  83,  Bank  U.  S.  v.  Dandridge.  These  cases  rest 
upon  the  obvious  principle,  that  the  law  will  not  sanction  the 
fraud  of  a  corporation,  sooner  than  that  of  an  individual.  There 
must  be  something  that  will  amount  to  legal  fraud.  Is  there 
any  thing  of  that  character  shown  in  this  case?  What  ap- 
proaches nearest  to  it,  perhaps,  is  the, fact  disclosed  by  the  testi- 
mony of  Aaron  Peck,  that  he  conversed  with  different  directors 
at  different  times,  and  the  giving  of  the  bond  and  mortgage 
was  approved  of  generally.  This  brings  home  a  knowledge  of 
the  fact  to  some  of  the  directors ;  but  to  whom,  or  how  many,  is 
not  shown.  The  time  when,  whether  before  or  after  the  meet- 
ing of  June,  1828,  is  uncertain.  Whether  the  information  was 
communicated  to  a  majority  of  the  board,  is  not  ascertained.  If 
the  fact  was  known  to  some  of  the  individual  members  of  the 
board,  and  not  disclosed  to  the  board  itself  shall  it  be  taken  as 
the  implied  assent  of  the  board,  so  as  to  fix  upon  the  corporation 
the  charge  of  fraud,  and  on  that  ground  bind  them  to  an  unau- 
thorized contract?  And  if  it  be  true,  as  is  alleged,  that  the 
bank,  by  giving  these  securities,  obtained  a  large  credit  with  the 
Franklin  Bank,  is  it  shown  that  this  fact  was  in  any  wise 
known  to  the  directors  ?  There  is  no  kind  of  evidence  of  it,  nor 
is  there  any  thing,  so  far  as  I  can  discover,  from  which  such  knowl- 
edge can  be  fairly  inferred. 

According  to  my  opinion,  then,  there  is  no  evidence  of  any  sub- 
sequent ratification  or  assent,  either  express  or  implied. 

It  is  said,  however,  that  the  corporation,  by  means  of  the 
mortgage  and  bond,  came  into  possession  of  considerable  funds 
which  were  appropriated  to  their  use,  and  that  they  are  bound  in 
equity  by  the  contract  on  that  ground.  If  I  understand  the 
way  in  which  the  business  was  transacted,  it  was  this  : — In 
January,  1828,  the  New-Jersey  Manufacturing  and  Banking 
company  were  largely  indebted  to  the  Franklin  Bank  ;  and,  up- 
on giving  these  securities,  the  Franklin  Bank  gave  them  a  cre- 
dit on  the  account  for  so  much  money  paid  ;  in  consequence  of 
which  they  were  enabled  to  obtain  further  loans  from  the  Frank- 
lin Bank.  The  securities  were  intended  to  operate  as  a  pay- 
ment. There  was  no  money  borrowed  on  the  faith  of  them  di- 
rectly. Some  of  the  old  authorities  seem  to  favor  the  position  of 


APRIL  TERM,  1832.  559 

Legjjett  et  al.  v.  The  N.  J.  Manufacturing  and  Banking  Co.  et  al. 

the  counsel  on  this  point.  Thus  it  is  said,  in  an  ancient  case, 
that  if  the  head  of  a  corporation,  by  the  intervention  of  a  ser- 
vant, buy  certain  things  for  the  use  of  the  corporation,  which 
are  actually  applied  to  their  use,  they  are  bound  by  this  con- 
tract ;  and  an  action  may  be  maintained  against  them,  after  the 
change  of  the  head,  in  whose  time  the  purchase  was  made.  So, 
if  one  who  is  the  regular  servant  of  the  corporation,  make  a 
purchase,  and  apply  it  to  the  use  of  the  corporation,  it  would 
seem  that  the  corporation  is  bound  :  but  in  both  these  cases  the 
plaintiff  must  aver  that  the  things  purchased  came  to  the  use  of 
the  corporation  :  Long  5to.  E.  4,  70,  71 ;  1  Kyd,  314.  And  in 
Wood's  Civil  Law,  it  is  laid  down  from  the  Digest,  that  corpo- 
rations may  borrow  money  by  their  syndick;  but  if  he  borrows 
more  than  he  had  authority  for,  the  community  is  not  answera- 
ble for  it  unless  the  money  came  to  their  use:  Wood's  Civil 
Law,  135;  Dig.  12,  1,  27.  When  these  cases  are  examined, 
they  do  not  sustain  the  complainant.  They  do  not  go  on  the 
gfound  that  the  unauthorized  contract  of  the  agent  binds  the 
principal,  but  rest  on  the  plain  equity  resulting  from  the  use 
and  enjoyment  of  the  property.  That  equity  applied  to  the  present 
case,  would  not  establish  the  securities  now  in  question.  It 
might,  I  do  not  mean  to  say  it  would,  give  the  Franklin  Bank 
the  right  to  demand,  in  the  character  of  ordinary  creditors,  the 
amount  of  the  debt  intended  to  be  paid  cu:  secured  by  the  mort- 
gage. The  security  may  be  void,  ajid  yet  the  debt  recoverable. 
See  Utica  Insurance  Co.  v.  Scott,  19  John.  1.  This  question 
is  not  raised  by  the  pleadings  in  this  cause,  and  I  give  no  opinion 
upon  it. 

The  result  of  the  whole  qase  is,  that  those  securities  are  in- 
valid instruments,  and  cannot  be  enforced  in  this  court  against  the 
defendants. 

Much  was  said  in  the  argument  about  the  hardship  of  a  de- 
cree declaring  this  bond  and  mortgage  invalid,  and  about  the 
innocence  of  Leggett.  There  is  no  room  for  complaint  on  the 
ground  of  severity.  The  transaction  was,  to  say  the  least  of  it, 
incautious  and  unadvised  ;  and  if  persons  will  deal  in  matters  of 
the  most  solemn  character,  with  agents  who  undertake  to  act  out 
of  the  scope  of  their  ordinary  and  acknowledged  powers,  they 


560  CASES  IN  CHANCERY. 

Murphy  v.  Stults  et  al, 

must  abide  the  consequences.  Then,  as  to  the  innocence  of 
Mr.  Leggett:  he  believed,  as  he  says  in  his  examination,  that 
the  assent  of  the  board  to  the  giving  of  the  mortgage  had  been 
obtained.  I  am  bound  to  give  credit  to  his  testimony.  I  may, 
however,  be  permitted  to  say,  that  he  founded  his  belief  upon 
supposition  rather  than  fact,  and  that  he  took  no  means  to  as- 
certain whether  it  was  right  or  wrong.  Mr.  Dayton  had  previ- 
ously expressed  his  opinion  to  Mr.  Leggett,  that  the  president 
and  cashier  had  no  authority  to  make  the  mortgage.  Mr.  L. 
differed  in  opinion,  and  signified  his  willingness  to  take  it  with- 
out the  order  of  the  board.  Mr.  Dayton  said  he  would  convene 
the  board.  Whether  that  had  been  done,  and  whether  the 
board  had  made  the  order,  were  matters  about  which  Mr.  Leg- 
gett could  have  satisfied  himself  by  a  single  question.  He  neg- 
lected or  omitted  to  ask  the  question,  and  betrayed  throughout 
an  unusual  anxiety  to  have  the  business  completed.  He  does 
not  allege  that  he  was  deceived  by  the  affidavit  of  Munn,  the 
cashier,  on  the  back  of  the  mortgage ;  'nor  could  he  have  been, 
for  that  appears  not  to  have  been  made  till  afterwards.  If  Mr. 
Leggett  was  innocent,  he  was  certainly  neither  careful  nor  pru- 
dent in  the  transaction ;  and  I  cannot  consider  him  as  standing 
in  a  situation  "that  entitles  him,  or  the  bank,  to  the  favorable 
consideration  of  the  court. 
Let  the  bill  be  dismissed. 

CITED  in  State  v.  Mayor  of  Morristown,  4  Vr.  63 ;  State  v.  Jersey  City,  5  Vr.  430 ; 
Hudson  v.  Inhabitants  of  Winslow,  6  Vr.  443;  Manhattan  Mfg.  Co.  v.  N.  J. 
Stock  Yd.  Co.,  8  G  E.  Or.  167. 


JAMES  MURPHY  v.  JOHN  STULTS— ON  ORIGINAL  BILL. 

JOHN  STULTS   v.   JAMES  MURPHY,  AARON   LONGSTREET,   AND 
JOHN  RULE— ON  CROSS-BILL. 


Upon  hearing,  on  bill,  cross-bill,  answers  and  depositions,  where  both  causes 
came  on  to  be  heard  together ;  and  each  party  has  material  allegations  to 
Bustain  under  their  respective  bills;  the  complainant  in  the  original  bill  is 
entitled  to  the  opening  and  reply. 


The  original   bill  was  filed  by  Murphy  against  Stults,  to  stay 
waste  on  a  tract  of  land,  which  the  complainant  alleged  he  had 


APRIL  TERM,  1832.  561 

Murphy  v.  Stults  et  al. 

recently  purchased  of  Aaron  Longstreet,  through  his  agent,  John 
Rule,  of  which  the  defendant  had  taken  possession,  &c.  The 
answer  alleged  that  the  defendant  had  entered  into  a  prior  con- 
tract with  Longstreet  for  the  purchase  of  the  same  premises,  of 
which  the  complainant  had  notice ;  under  which  contract  the  de- 
fendant had  taken  possession,  &c. 

The  cross-bill  was  filed  by  Stults  against  Murphy,  Longstreet, 
and  Rule,  praying  for  a  specific  performance  of  the  contract  of  sale 
by  Longstreet  to  Stults,  and  for  an  injunction  to  restrain  Murphy 
from  committing  waste,  &c. 

Answers  had  been  put  in,  witnesses  examined,  and  both  causes 
set  down  for  hearing ;  upon  which,  a  question  arose  as  to  the 
order  of  proceeding. 

W.  Hoisted,  for  complainant  on  original  bill ; 
8.  R.  Hamilton,  for  complainant  on  cross-bill. 

THE  CHANCELLOR.  A  bill  and  cross-bill  have  been  filed,  to 
which  answers  have  been  put  in,  and  the  causes  put  at  issue. 
Witnesses  have  been  examined,  and  both  causes  now  come  on  to  be 
heard  together.  Each  party  has  material  allegations  to  sustain 
under  their  respective  bills.  In  such  case,  the  complainant  in  the 
original  bill  is  entitled  to  the  opening  and  reply. 

2N 


CASES    DECIDED 


IN  THE 


COURT   OF  CHANCERY 


OP   THE 


STATE    OF    NEW- JERSEY, 

JULY  TEEM,  1832. 


GAEEET  S.  HENDEICKSON,  WILLIAM  G.  HENDEICKSON,  PETER 
S.  HENDEICKSON,  LAWEENCE  THOMAS,  WILLIAM  HEND- 
BICKSON  AND  ALICE  HIS  WIFE,  AND  SAMUEL  POTTEE  AND 
EEBECCA  HIS  WIFE,  v.  JAMES  IVINS. 


Upon  an  agreement  for  the  sale  of  land,  of  which  a  memorandum  in  writing  was 
made  as  follows: — "January,  17,  1829.  This  may  certify  that  James  Ivins 
has  agreed  with  the  heirs  of  Samuel  Hendrickson,  deceased,  for  the  farm 
where  Garret  Hendrickson  now  lives,  and  the  said  James  Ivins  is  to  give 
them  forty-eight  dollars  per  acre  for  the  same."  Although  not  noticed  in 
the  agreement,  it  may  be  shown  by  parol  evidence,  that  it  was  mentioned  at 
the  time  of  the  agreement,  and  admitted  by  the  vendee  in  an  after-conversa- 
tion, that  the  green  grain  then  growing  in  the  ground,  and  some  wild  cherry 
logs,  were  reserved  in  the  sale ;  and  this  part  of  the  agreement  is  not  within 
the  statute  of  frauds,  and  will  be  enforced  in  equity. 

And  where  the  agreement  existed,  without  any  alteration  in  this  respect,  up  to 
the  time  of  executing  the  deed  ;  and  the  scrivener  who  prepared  the  deed, 
being  requested  by  one  of  the  vendors  to  insert  the  reservation  in  it,  declined 
doing  so;  not  because  it  was  objected  to  on  the  part  of  the  vendee,  but  be- 
cause, he  considered  it  unusual,  if  not  improper,  to  insert  such  reservation  in 
a  deed  in  fee  simple ;  and  the  deed  was  executed  without  it.  Whether  it  be 
considered  a  mistake  in  the  scrivener  in  not  inserting  it,  or  inadvertence  in 
the  vendors  in  not  insisting  upon  its  insertion,  is  immaterial ;  the  mistake 
in  the  deed  will  be  rectified,  so  as  to  accord  with  the  agreement  of  the  parties. 

The  idea  which  formerly  prevailed,  that  mistakes  could  not  be  relieved  against, 

562 


JULY  TERM,  1S32.  563 

Hendrickson  et  al.  v.  Ivins. 

though  cases  of  fraud  might,  has  long  been  considered  unsound;  and  cer- 
tainly is  not,  at  this  day,  the  law  of  this  court. 

Bo,  too,  the  principle  which  formerly  obtained,  that  although  a  defendant  might 
avail  himself  of  a  plain  mistake,  and  thereby  relieve  himself  from  the 
operation  of  a  written  agreement ;  yet  the  complainant  was  not  entitled  to  the 
same  assistance  to  enable  him  to  recover,  has  been  repeatedly  overruled; 
and  the  late  cases  go  far  to  place  both  parties  on  the  same  footing. 

Courts  of  equity  now  go  on  the  broad  principle,  that  where  a  mistake  is  manifest, 
they  will,  in  the  exercise  of  their  ordinary  jurisdiction,  correct  it,  and  hold 
the  party  according  to  his  original  intention. 

Whether  there  is  a  custom  of  the  country,,  that  when  a  party  is  entitled  to  th« 
way-going  crop  he  can  take  the  grain  only,  and  not  the  straw,  or  if  he  take 
the  straw  away  he  must  return  it;  established  in  such  a  way  as  to  justify  this 
court  in  acting  on  it,  where  there  is  no  written  contract,  quere. 

But  in  the  case  of  vendor  and  purchaser,  the  contract  itself  must  govern  ;  and 
must  be  construed  according  to  its  own  terms,  and  not  according  to  the  cus- 
toms or  usages  between  landlord  and  tenant,  in  respect  to  the  way -going  crop. 

Under  a  reservation,  in  a  contract  for  the  sale  of  lands,  of  green  grain  in  the  ground, 
the  whole  crop  goes  together  and  is  reserved  ;  under  the  term  green  grain  in 
the  ground,  it  is,  quo  ad  hoc,  an  entirety,  and  cannot  be  separated  into  its  com- 
ponent parts ;  and  being  reserved,  it  is  as  though  the  vendee  had  purchased 
the  land  without  any  such  grain  being  in  the  ground,  and  he  has  no  interest 
in  it  whatever. 

Under  such  circumstances,  the  vendee  was  properly  enjoined  from  prosecuting  a 
suit  against  the  vendors,  for  taking  the  grain  and  straw;  and  the  injunction 
was  continued. 

The  principal  ground  of  defence,  i.  e.  the  construction  o£  the  contract,  not  being 
UD conscientious,  no  costa  were  given. 


The  original  bill  in  this  cause  was  for  an  injunction,  and  presents 
the  following  case  : — 

That  in  1815,  Samuel  Hendrickson,  of  Monmouth  county, 
died  intestate,  leaving  children,  viz:  Peter,  Samuel,  Tobias, 
Garret,  Rebecca  afterwards  wife  of  Samuel  Potter,  and  Alice 
afterwards  wife  of  William  Hendrickson.  Peter  sold  out  his  in- 
terest in  the  real  estate  descended  to  them,  to  the  other  heirs.  In 
1829,  Garret,  Rebecca,  and  Alice,  occupied  the  premises,  pay- 
ing the  other  heirs  rent  therefor  according  to  their  respective  in- 
terests therein.  In  the  autumn  of  1828,  Garret  and  Alice 
caused  a  crop  of  rye  to  be  put  in  on  thirty-five  acres  of  the  pre- 
mises, which  they  insist  they  were  authorized  to  cut  and  appro- 
priate to  their  own  use  when  at  maturity.  In  January,  1829, 


564  CASES  IN  CHANCERY. 

Hendrickson  et  al.  v.  Ivins. 

the  said  heirs  agreed  with  James  Ivins,  the  defendant,  to  sell  him 
the  said  real  estate  for  forty-eight  dollars  per  acre;  and  on  the 
17th  January,  1829,  a  short  and  imperfect  memorandum  of  the 
agreement  was  made,  which  was  afterwards  departed  from,  and 
a  new  verbal  agreement  for  said  sale  was  made  between  the  par- 
ties, in  which  it  was  expressly  stipulated,  that  the  grain  growing 
OQ  the  premises  should  be  reserved,  and  certain  wild  cherry  trees 
were  also  expressly  reserved. 

On  the  4th  of  April,  1829,  a  deed  was  executed,  conveying  to 
Ivins  the  property,  in  which  deed  no  mention  was  made  of  the 
grain  being  reserved.  This  was  through  mistake  and  inadvertence, 
and  because  it  was  not  customary,  in  conveyances  in  fee  simple,  to 
make  mention  of  such  circumstances. 

In  July,  1829,  Garret  Hendrickson  caused  the  said  rye  to  be  cut 
and  carried  away,  for  the  use  of  himself  and  sisters,  being  the 
lessees  as  aforesaid  ;  and  that  William  Hendrickson,  Peter  Hen- 
drickson, and  one  Lawrence  Thomas  assisted,  acting  under  him. 
Upon  this  Ivins  brought  suit  against  Garret,  William  and  Peter 
Hendrickson,  and  Lawrence  Thomas,  in  the  common  pleas  of 
Monraouth ;  and  this  bill  was  filed  for  an  injunction  and  relief. 
It  prays  that  the  grain  may  be  decreed  to  belong  to  the  said  Gar- 
ret, and  to  Alice  and  Rebecca  and  their  husbands,  and  that  the 
mistake  in  the  deed  may  be  rectified  so  as  to  exclude  the  grain 
from  its  operation.  On  filing  this  bill  an  injunction  was  issued, 
staying  further  proceedings  at  law. 

The  defendant,  in  his  answer,  admits  that  Samuel  Hendrick- 
aon  died  seized,  and  left  children,  as  above  stated  :  that  in  1829, 
the  premises  were  occupied  by  Garret,  Rebecca  and  Alice,  as 
above  set  forth ;  but  cannot  state  the  terms  of  such  occupancy. 
He  admits,  that  in  the  autumn  of  1828,  they  caused  a  crop  of 
rye  to  be  sown  on  the  premises,  on  about  forty-one  acres  of  it, 
and  not  thirty-five,  as  stated  by  the  complainants.  That  on  the 
17th  of  January,  1829,  defendant  entered  into  an  agreement  with 
the  heirs  for  the  purchase  of  the  farm,  at  forty-eight  dollars  per 
acre;  and  that  a  memorandum  of  said  agreement  was  made  and 
signed  by  defendant  and  the  heirs,  in  the  following  form  :  "Jan- 
nary  17th,  1829.  This  may  certify,  that  James  Ivins  has  agreed 
with  the  heirs  of  Samuel  Hendrickson,  deceased,  for  their  farm 


JULY  TERM,  1832.  565 


Hendrickson  et  al.  v.  Ivins. 


where  Garret  Hendrickson  now  lives;  and  the  said  James  Ivins 
is  to  give  them  forty-eight  dollars  per  acre  for  the  farm."  He 
denies  that  the  agreement  contained  any  reservation  of  the 
grain,  or  that  the  said  agreement  was  ever  departed  from,  or  any 
verbal  reservation  made  respecting  the  grain.  He  alleges,  that  a 
few  days  after  the  agreement  was  made,  Garret,  Rebecca,  and 
Alice  and  her  husband,  called  on  defendant,  and  said  they  had 
concluded  not  to  sell  the  farm ;  but  that  neither  Samuel  nor  To- 
bias made  any  effort  to  rescind  the  contract.  A  few  days  after, 
the  objections  were  withdrawn.  That  after  the  said  agreement 
was  fully  made,  Samuel  said  there  were  a  few  wild  cherry  tree 
logs  lying  on  the  premises  that  they  wanted  for  furniture,  and 
there  was  also  the  rye  growing  on  the  ground.  That  thereupon 
the  defendant  declared,  that  if  they  would  let  him  into  possession 
of  the  premises  peaceably  and  without  diminution,  he  would  not 
object  to  their  taking  the  logs  and  the  grain,  leaving  the  straw. 
He  has  no  recollection  of  any  other  agreement  or  reservation. 
The  defendant  admits  the  execution  of  the  deed,  and  insists  that 
at  the  time  of  the  delivery,  (in  April,)  there  was  no  reservation 
or  exception  whatever,  and  that  the  whole  of  the  property,  with 
the  rents  and  profits  thereof,  belong  to  the  defendant.  He  denies 
any  other  reservation  than  that  above  stated,  which  he  says  was 
a  mere  benevolence,  and  without  consideration,  and  formed  no  part 
of  the  contract ;  and  denies  that  they  let  him  into  possession  peace- 
ably and  without  diminution,  but  that  they  took  off  the  premises 
several  loads  of  ashes,  cut  down  four  large  wild  cherry  trees  useful 
for  shade,  carried  off  a  white  oak  log,  and  claimed  and  attempted 
(o  remove  several  other  articles.  He  was  still  willing  they  should 
take  the  rye,  provided  they  would  thresh  it  on  the  premises  and 
leave  the  straw,  according  to  the  license  he  had  formerly  given 
conditionally  for  the  purpose  ;  but  they  refused  to  act  under  such 
license,  and  set  up  a  claim  of  right  not  only  to  the  grain,  but  the 
straw.  The  defendant  then  sets  up  the  statute  for  the  prevention 
of  frauds  and  perjuries,  in  bar  of  any  parol  agreement  respecting 
the  premises;  and  admits  that  when  the  complainants  had  entered 
and  carried  away  the  grain  and  straw,  after  being  warned  not  to  do 
so,  he  brought  suit  against  them  in  the  common  pleas  of  Mon- 
mouth,  as  lawfully  he  might. 


S66  CASES  IN  CHANCERY. 

Hendrickson  et  al.  v.  Ivins. 
G.  Wood,  for  complainants; 

G.  D.  Wall,  for  defendant. 

THE  CHANCELLOE.  Much  testimony  has  been  taken  on  both 
sides;  and  I  think,  on  a  careful  review  of  it,  there  can  be. no 
doubt  that,  by  "the  original  agreement,  entered  into  on  the  17th 
January,  1829,  the  green  grain  then  growing  in  the  ground  was 
reserved  out  of  the  purchase  ;  and  that,  in  what  is  called  the  second 
bargain,  which  was  subsequently  made,  after  certain  difficulties  on 
the  part  of  some  of  the  heirs  had  been  removed,  the  same  reserva- 
tion was  continued  and  confirmed. 

Samuel  S.  Hendrickson  testifies,  that  he  was  present  when  the 
agreement  for  sale  took  place ;  and  that  he  informed  defendant 
then  that  the  grain  belonged  to  Garret  and  his  sisters,  and  must  be 
reserved  ;  and  that  the  defendant  agreed  to  it.  There  was  nothing 
said  about  straw,  but  he  considered  the  grain  in  the  ground  as 
embracing  the  grain  and  the  straw,  or  considered  them  as  one 
thing.  After  this  some  of  the  heirs  became  dissatisfied,  and  at- 
tempted to  rescind  the  contract.  Finally  thev  all  agreed  to  the 
sale,  and  witness  again  mentioned  to  defendant  that  the  grain  must 
be  reserved,  to  which  the  defendant  agreed. 

Tobias  S.  Hendrickson  was  also  present,  and  says  the  green 
grain  in  the  ground  was  reserved.  Samuel  mentioned  it,  and  the 
defendant  consented  to  it;  he  said,  "of  course,  he  did  not  expect 
to  have  that." 

These  two  witnesses  swear  expressly  as  to  the  fact  and  time  of 
the  transaction  ;  and  their  testimony,  from  the  circumstance  of 
their  being  interested  in  the  sale,  and  having  their  attention  drawn 
to  what  took  place"  at  the  time,  and  yet  in  no  way  interested  in  this 
question,  is  entitled  to  great  consideration. 

In  addition  to  this,  Gilbert  Hendrickson  testifies,  that  after  the 
defendant  went  into  possession  of  the  property,  he  asked  of  him 
permission  to  get  some  black  oak  logs  off  the  premises,  which 
he  had  purchased  off  the  former  owners;  he  refused  permission, 
and  said  they  were  not  reserved,  that  only  the  grain  in  the 
ground  and  the  cherry  tree  logs  were  reserved.  He  states  fur- 
ther, that  when  the  grain  was  being  cut,  defendant  came  to  him 


JULY  TERM,  1832.  567 


Hendrickson  et  al.  v.  Ivina. 


to  know  his  opinion,  whether  he  (the  defendant)  was  entitled  to 
the  straw.  He  claimed  it  then  as  a  custom,  but  said  nothing  about 
any  .agreement  relating  to  it.  This  is  in  all  things  confirmed  by 
the  evidence  of  Ida  Ann  Molatt,  who  was  present  when  the  con- 
versation took  place. 

There  are  some  of  the  defendant's  witnesses  who  speak  of  a 
conversation  between  the  defendant  and  Garret  or  William  in 
relation  to  the  grain,  and  who  understood  the  parties  to  say  there 
was  no  other  agreement  but  the  short  memorandum  in  writing, 
which  was  placed  in  the  hands  of  John  Taylor,  jun.,  for  safe 
keeping.  Others  understood  them  to  refer  to  some  subsequent 
agreement  for  taking  the  grain  and  some  cherry  tree  logs,  not 
in  the  nature  of  a  reservation,  but  rather  of  a  conditional  permis- 
sion, given  ex  gratia,  and  not  founded  on  any  consideration.  But, 
notwithstanding  these  apparent  discrepancies,  I  am  satisfied  that 
the  conclusion  to  which  I  have  arrived  is  correct.  Casual  conver- 
sations are  but  little  to  be  relied  on,  especially  when  detailed  after 
a  lapse  of  time,  by  persons  who  had  no  particular  interest  in  them 
when  they  occurred,  and  no  special  motive  for  treasuring  them  up 
in  the  memory.  Some  of  the  defendant's  evidence  on  this  point  of 
the  case  is  of  this  character;  and  making  for  it  the  allowance  that 
is  always  due  to  such  testimony,  it  is  not  difficult  to  reconcile  it 
with  the  truth-  of  the  case. 

But  the  agreement  was  entered  into  in  January,  and  the  deed, 
which  is  alleged  to  be  contrary  to  the  agreement  and  to  have 
been  drawn  so  by  mistake  or  inadvertence,  was  executed  in  April. 
An  important  question  is,  did  the  agreement  continue  until  the 
time  the  deed  was  executed,  or  was  it  altered?  It  must  appear 
that  the  agreement  was  in  existence,  unrevoked,  at  the  time  of 
making  the  deed,  or  the  fact  of  the  mistake  is  not  made  out. 
It  is  not  expressly  shown  from  the  evidence,  that  there  was, 
when  the  deed  was  executed,  any  express  recognition  of  the  pre- 
vious agreement.  The  conversation  that  passed  between  Hen- 
drickson and  Debow  the  scrivener,  respecting  the  insertion  of  the 
reservation  in  the  deed,  was  not  in  the  presence  of  Ivins,  and  is 
no  evidence  against  him.  I  think,  however,  the  whole  evidence 
shows  there  had  not  been,  up  to  the  time  the  deed  was  executed, 
any  alteration  of  the  original  agreement,  and  that  none  was  then 


568  CASES  IN  CHANCERY. 

Hendrickson  et  al.  T.  Ivins. 

made.  As  it  was  before,  so  it  existed  at  that  time ;  and  the  deed 
as  drawn,  with  full  covenants  and  without  any  reservation,  was  not 
in  conformity  with  the  understanding  of  the  parties. 

The  deed  was  prepared  by  Debow.  He  was  requested  by  one 
of  the  vendors  to  insert  the  reservation  in  it.  He  declined  doing 
it,  not  because  it  was  objected  to  on  the  part  of  the  defendant, 
but  because  he  considered  it  unusual,  if  not  improper.  These 
reservations,  he  said,  were  never  made  in  fee  simple  convey- 
ances. This  satisfactorily  explains  why  the  reservation  was  not 
made  in  the  deed ;  and  whether  it  is  considered  a  mistake  on  the 
part  of  the  scrivener  in  not  inserting  it,  or  an  inadvertence  on  the 
part  of  the  vendors  in  not  insisting  on  its  being  done,  is  not  at  all 
material. 

The  agreement,  then,  being  established,  and  it  being  also 
made  manifest  that  the  deed  was  drawn  in  its  present  form 
through  mistake  or  inadvertence,  and  that  it  is  not  in  accordance 
with  the  agreement  of  the  parties,  the  question  arises,  whether 
this  court  can  or  will  correct  the  mistake?  and  upon  this  point  I 
cannot  entertain  a  doubt.  The  idea  which  formerly  prevailed, 
that  mistakes  could  not  be  relieved  against,  though  cases  of  fraud 
might,  has  long  been  considered  unsound,  and  certainly  is  not 
at  this  day  the  law  of  this  court.  So,  too,  the  principle  which 
formerly  obtained,  that  although  a  defendant  might  avail  him- 
self of  a  plain  mistake,  and  thereby  be  relieved  from  the  op- 
eration of  a  written  agreement,  yet  the  complainant  was  not  en- 
titled to  the  same  assistance  to  enable  him  to  recover,  has  been 
repeatedly  overruled ;  and  the  late  cases  go  far  to  place  both  par- 
ties on  the  same  footing.  Courts  of  equity  go  now  on  the  broad 
principle,  that  where  a  mistake  is  manifest,  they  will,  in  the 
exercise  of  their  ordinary  jurisdiction,  correct  it,  and  hold  the 
party  according  to  his  original  intention.  And  upon  this  princi- 
ple, I  have  no  difficulty  in  ordering  the  mistake  in  this  case  to  be 
rectified. 

I  will  only  refer  to  a  few  of  the  leading  English  cases  on  this 
subject:  Wordale  v.  Halfpenny,  2  P.  TFms.  JR.  151;  Hene- 
age  v.  Hunloke,  2  Atk.  R.  456 ;  Simpson  v.  Vaughan,  2  Atk. 
R.  31  ;  .Henkle  v.  Royal  Exchange  Assurance  Co.,  1  Fes.  sen. 
317 ;  Baker  v.  Paine,  1  Ves.  jr.  456 ;  Bum  v.  Burn,  3  Fes. 


JULY  TERM,  1832.  569 

Hendrickson  et  al.  v.  Ivins. 

jr.  573.  In  this  last  case,  a  joint  bond  was  held  by  lord  Rosslyn 
to  be  a  several  bond,  even  against  creditors ;  and  the  mistake  was 
shown  on  the  part  of  the  complainant.  So  also,  in  the  case  of  the 
South  Sea  Co.  v.  D'Oliffe,  cited  5  Ves.  jr.  601,  the  party  was 
relieved  against  a  mistake  in  the  bond  given  by  way  of  security, 
six  months  having  been  inserted  instead  of  two  months.  Many 
other  cases  might  be  named.  See  those  collected  in  2  Bridg.  In- 
dex, tit.  Mistake;  Sug.  on  Vendors,  120;  and  Jeremy  on  Eq. 
Jurisd.  432,  456,  489,  490. 

Chancellor  Kent,  in  Wiser  v.  Blackly,  1  John.  C.  R.  601,  recog- 
nizes the  same  principle;  and  also  in  Gillespie  v.  Moor,  2  John. 
C.  E.  585. 

The  question  has  several  times  been  raised  in  this  court,  and  I 
believe  the  decisions  have  always  been  uniform.  In  the  case  of 
Smith  v.  Allen  and  al.,  decided  in  the  term  of  July,  1830,  the 
court  rectified  a  mistake  in  a  bond,  taken  by  a  sheriff  for  the  pri- 
son limits,  under  the  statute ;  and  that,  too,  on  the  application  of 
the  complainant.  In  that  case  all  the  authorities  are  collected. 
I  have  examined  the  opinion  then  pronounced,  in  reference  to  this 
subject,  and  am  satisfied  of  its  correctness. 

Taking  the  law  to  be  settled  on  this  point,  I  shall  consider  the 
deed  reformed,  and  proceed  to  inquire  into  the  construction  to  be 
given  it.  Shall  it  be  cohstr.ued  as  giving  to  the  party  reserving 
the  green  grain  in  the  ground,  the  right  to^arry  off  the  premises 
the  straw,  when  the  crop  shall  have  arrived  at  maturity,  or  must 
the  straw  be  left  on  the  ground  ? 

Much  evidence  has  been  adduced  to  prove  what  is  the  custom 
of  the  country  in  relation  to  the  way-going  crops.  It  has  been 
sought  to  establish  the  principle,  that  when  a  party  is  entitled  to 
a  way-going  crop,  he  can  take  the  grain  only,  and  not  the  straw; 
or  if  he  take  the  straw  away  he  must  return  it.  I  doubt  whether 
any  custom  has  been  established  in  such  a  way  as  to  justify  the 
court  in  acting  on  it.  Most  of  the  cases  referred  to  by  the  wit- 
nesses, were  cases  of  holding  under  written  contracts,  in  which 
it  was  stipulated  that  no  hay  or  .straw  should  be  removed  from 
the  premises;  and  only  prove  that  the  generality  of  specific 
agreements  are  made  in  that  way,  but  do  not  determine  what 
the  custom  is  when  there  is  no  contract.  Some  of  the  cases  are 


570  CASES  IN  CHANCERY. 

Hendrickson  et  al.  v.  Ivins. 

directly  in  point,  and  are  entitled  to  a  respeclful  consideration. 
It  does  not  appear  to  me,  however,  if  the  custom  was  fully  proved, 
that  it  would  govern  this  case.  There  is  no  relationship  of  land- 
lord and  tenant  existing  between  these  parties.  As  between  them, 
the  crop  cannot  be  viewed  in  the  light  of  a  way-going  crop.  Aa 
between  the  heirs  themselves,  some  of  whom  were  lessors  and  oth- 
ers lessees  of  this  property,  the  custom,  if  proved,  might  apply. 

In  this  case,  the  contract  itself  must  govern ;  and  it  is  to  be 
construed  according  to  its  own  terms,  and  not  according  to  the 
customs  or  usages  which  may  exist  between  landlords  and  ten- 
ants. It  appears  to  me  the  contract  admits  of  but  one  construc- 
tion ;  and  that  is,  that  the  whole  of  the  crop,  grain  and  straw, 
goes  together,  under  the  term  green  grain  in  the  ground.  It 
is,  quo  ad  hoc,  an  entirety,  and  cannot  be  separated  into  its 
component  parts.  The  green  grain  in  the  ground  being  reserved, 
it  is  as  though  the  defendant  had  purchased  the  property  without 
any  such  green  grain  being  in  the  ground.  It  must  be  separated 
from  the  purchase,  and  taken  as  though  it  had  no  existence.  It 
has  none  as  to  the  purchaser,  for  he  has  no  interest  in  it  whatever. 

I  consider,  therefore,  that  under  the  contract  itself,  the  vendors 
were  entitled  to  the  crop  in  its  largest  sense;  that,  they  were  jus- 
tified in  taking  it  as  they  did  ;  and  that  the  defendant  be  perpet- 
ually injoined  from  further  prosecuting  his  suit  in  the  common 
pleas. 

I  doubt  the  propriety  of  costs  in  this  case,  more  especially  as 
the  defence  on  the  principal  ground,  the  construction  of  the  con- 
tract or  reservation,  does  not  appear  unconscieucious.  If  costs 
are  claimed  by  the  complainant,  I  will  hear  him  in  behalf  of  the 
application. 

CITED  in  Bloom  v.  Welsh,  3  Dutch.  179 ;  Martin  v.  Righter,  2  Stock.  516 ;  Firm- 
stone  v.  DeCamp,  2  C.  E.  Or.  315. 


JULY  TERM,  1832.  571 


Prichett  v.  Ex'rs  of  Newbold  et  al. 


JACOB  PRICHETT  v.  THE  EXECUTORS  OF  DANIEL  NEWBOLD, 
DECEASED,  AND  OTHERS. 


The  assignee  of  an  insolvent  debtor,  on  general  principles,  is  bound  to  pay  all 
debts  due  and  owing  by  the  insolvent,  up  to  the  time  of  his  making  applica- 
tion for  a  discharge  under  the  insolvent  acts. 

Upon  a  bill  filed  by  J.  Prichett,  who  was  appointed  the  assignee  of  S.  Hew- 
lings,  an  insolvent  debtor,  upon  his  discharge  under  the  insolvent  act,  on 
the  9th  August,  1814,  against  D.  Newbold  and  two  others,  to  whom  the 
debtor  had,  on  the  17th  December,  1811,  assigned  all  his  property,  in  trust, 
to  satisfy  claims  due  to  them,  and  the  balance  to  his  own  us"e;  to  set  aside 
the  former  assignment,  and  for  an  account :  It  was  referred  to  a  master,  to 
ascertain  the  sums  due  the  former  assignees,  respectively,  at  the  date  of  the 
first  assignment,  and  the  amount  come  to  their  hands.  The  master,  among 
other  things,  reported,  "  that  at  the  date  of  the  former  assignment,  (17th  De- 
cember, 1811,)  there  was  due  to  D.  Newbold,  one  of  the  assignees,  thirty- 
nine  dollars  and  twenty-four  cents  ;  which  report  was  confirmed,  (in  Octo- 
ber, 1828,)  and  it  was  decreed,  that  the  original  assignment  (to  Newbold 
and  others)  was  fraudulent  and  void  ;  that  the  said  assignees  pay  over  the 
moneys  by  them  received,  and  deliver  the  books  and  property  in  their  hands, 
to  the  complainant ;  and  that  after  deducting  his  expenses  in  prosecuting 
the  suit,  and  a  compensation  for  his  time,  trouble,  &c.,  to  be  taxed  by  a 
master,  he  make  a  dividend  of  .the  balance  among  the  creditors  of  the  in- 
solvent, agreeably  to  the  statute  concerning  insolvent  debtors.  Also,  that 
the  original  assignees  receive  a  dividend,  as  creditors,  for  the  amount  found 
due  to  them,  respectively,  by  the  master's  report."  Upon  a  further  reference, 
to  inquire  what  sums  were  due  to  the  creditors  who  had  presented  their 
claims  to  the  complainant,  agreeably  to  the  decsee,  directing  that  they  ex- 
hibit the  same  under  oath  ;  the  executors  of  D.  Newbold  exhibited  a  claim, 
against  the  debtor,  under  affirmation,  which,  on  the  9th  August,  1814, 
amounted  to  five  hundred  and  twenty  dollars  and  sixty  cents,  founded  on 
an  order  and  receipt,  dated  25th  December,  1811,  (eight  days  after  the  first 
assignment,)  which  was  disallowed  by  the  master,  on  the  ground  that  the 
amount  due  to  D.  Newbold,  on  which  a  dividend  was  to  be  received,  was  fixed 
by  the  decree,  and  no  other  allowance  could  be  made.  Upon  exception  to 
the  master's  report, — held,  that  this  claim  is  not  barred  by  the  terms  of  the 
decree. 

The  proper  construction  of  the  decree  is,  that  the  complainant  is  to  distribute 
among  the  creditors  according  to  the  provisions  of  the  insolvent  act,  and  in 
so  doing  is  to  take  the  sums  found  due  to  the  former  assignees,  at  the  date 
of  the  first  assignment,  as  the  sums  actually  due,  without  farther  examina- 
tion, up  to  that  time ;  they  having  been  computed  up  to  that  time,  that 
computation  is  to  be  considered  as  settled.  But  as  to  any  claims  not  pre- 
viously adjusted,  they  are  to  stand  in  the  same  situation  as  other  creditors. 


572  CASES  IN  CHANCERY. 

Prichett  v.  Ex'rs  of  Newbold  et  al. 

As  the  terras  of  the  decree  do  not,  necessarily,  exclude  such  construction,  the  court 
will  give  it  an  interpretation  which  shall  consist  with  equity,  and  the  prin- 
ciples of  the  statute  on  which  it  is  founded. 

The  master,  in  taxing  the  allowance  to  be  made  to  the  assignee,  for  his  time, 
trouble,  and  the  expenses  of  the  suit,  included  interest  on  payments  necessa- 
rily made  before  any  funds  came  to  hand :  on  exception,  the  interest  wan 
allowed. 

On  the  17th  of  December,  1811,  Samuel  Hewlings  executed 
an  assignment  of  all  his  estate  to  Daniel  Newbold,  Samuel 
Haines,  and  Isaac  Hewlings,  in  trust  to  pay  and  satisfy  the 
claims  of  the  said  assignees  against  him,  and  in  further  trust  to 
pay  over  the  balance,  if  any,  to  the  use  of  the  said  Samuel 
Hewlings,  the  assignor.  Some  time  after,  Samuel  Hewlings 
became  an  insolvent  debtor,  and  as  such  was  discharged  from 
confinement  under  the  insolvent  laws  of  the  state,  and  Jacob 
Prichett,  the  complainant,  was  appointed  his  assignee,  in  due 
form  of  law.  In  1816,  Prichett  filed  his  bill  against  the  original 
assignees,  for  the  purpose  of  setting  aside  the  deed  of  assign- 
ment, and  obtaining  an  account,  and  possession  of  the  property 
for  distribution.  In  the  term  of  July,  1820.  it  was  referred  to  a 
master,  to  take  an  account  of  the  debts  due  from  Samuel  Hew- 
lings to  Newbold,  Haines,  and  Isaac  Hewlings,  the  original  as- 
signees, on  or  before  the  17th  day  of  December,  1811,  being  the 
day  of  the  assignment ;  and  of  the  moneys  received  by  them  in 
virtue  of  the  assignment;  and  also  of  the  moneys  due  to  Samuel 
Hewlings  on  the  day  of  the  assignment,  and  the  amount  received 
by  him  since  that  time,  as  also  the  amount  surrendered  when  he 
took  the  benefit  of  the  insolvent  laws. 

The  master  reported,  that  he  found  due  from  Samuel  Hewlings, 
to  1.  Daniel  Newbold,  the  sum  of  $39  24 

2.  Samuel  Haines,  108  26 

3.  Isaac  Hewlings,         -        -  622  16 


$763  66 

He  reported  further,  that  the  assignees  had  received  by  virtue 
of  the  assignment,  two  thousand  five  hundred  and  sixty  dollars 
and  forty-three  cents;  that  the  amount  due  to  Samuel  Hewlings 
on  the  day  of  the  assignment,  was  three  thousand  four  hundred 


JULY  TERM,  1832.  573 


Prichett  v.  Ex'rs  of  New  bold  et  al. 


and  thirty-nine  dollars  and  seventy-six  cents:  that  the  amount 
received  by  him  after  the-  assignment,  was  seven  hundred  and 
eighteen  dollars  and  ten  cents ;  and  that  when  he  took  the  benefit 
of  the  insolvent  laws,  he  had  no  property  whatever  to  surrender  to 
his  assignee  for  the  benefit  of  his  creditors. 

In  October,  1828,  the  report  was  confirmed,' and  it  was  decreed 
that  the  original  assignment  was  fraudulent  and  void  ;  that  the  as- 
signees deliver  over  the  said  sum  of  two  thousand  five  hundred  and 
sixty  dollars  and  forty-three  cents  found  to  be  in  their  hands,  and 
also  the  books  and  other  property  mentioned  in  the  report,  to  the 
complainant;  and  that,  after  deducting  the  money  by  him  paid 
and  expended  in  and  about  the  prosecution  of  the  suit,  and  also  a 
reasonable  compensation  for  his  time,  trouble,  &c.,  to  be  taxed  by 
one  of  the  masters,  he  forthwith  proceed  to  make  a  dividend  of 
the  balance  among  the  creditors  of  the  said  Samuel  Hewlings, 
agreeably  to  the  statute  concerning  insolvent  debtors.  Also,  that 
the  original  assignees,  respectively,  receive  a  dividend  as  creditors 
of  the  said  Samuel  Hewlings,  for  the  sums  found  due  to  them 
respectively,  by  the  said  master's  report,  as  above  stated.  i\ 

In  March,  1830,  the  complainant  came  into  court  by  his  pe- 
tition, and  representing  that  great  difficulties  had  arisen  in  ad- 
justing the  accounts  and  ascertaining  the  several  sums  due  to  the 
claimants,  prayed  that  it  might  be  referred  to  a  master  to  inquire 
and  report  what  sums  were  really  due  from  the  said  Samuel 
Hewlings  at  the  date  of  the  said  deed  of  assignment,  to  the  seve- 
ral persons  claiming  to  be  creditors.  Upon  this  it  was  referred  to 
Abraham  Brown,  esquire,  one  of  the  masters,  &c.,  to  inquire 
and  report  what  sura  or  sums  of  money  were  due  to  the  creditors 
who  had  exhibited  their  claims  to  the  complainant,  agreeably  to 
the  decree;  and  that  they  exhibit  their  accounts  under  oath, 
&c. 

In  October,  1831,  the  master  reported  his  proceedings,  and  in 
the  report  stated,  among  other  things,  that  John  Black,  one  of 
the  executors,  &c.  of  Daniel  Newbold,  deceased,  in  behalf  of 
himself  and  his  co-executor,  Thomas  Black,  exhibited  under 
affirmation  a  claim  against  the  said  Samuel  Hewlings,  founded 
upon  a  receipt  and  order,  bearing  date  the  25th  day  of  December, 
1811,  the  amount  of  which,  on  the  9th  of  August,  1814,  being 


574  CASES  IN  CHANCERY. 

Prichett  v.  Ex'rs  of  Newbold  et  al. 

the  date  of  the  last  assignment,  was  five  hundred  and  thirty-two 
dollars  and  sixty  cents;  and  that  he  disallowed  this  claim,  on  the 
ground  that  the  amount  due  to  Daniel  Newbold,  and  on  which 
a  dividend  was  to  be  made,  was  specifically  fixed  by  the  decree  of 
October,  1828,  and  that  no  other  allowance  could  be  made  to  him 
according  to  the  terms  of  that  decree. 

This  part  of  the  report  has  been  excepted  to  by  the  executors 
of  Daniel  Newbold,  deceased ;  and  it  is  insisted  that  the  decree 
has  not  been  properly  construed  by  the  master. 

G.  D.  Wall,  for  complainant; 
G.  Wood,  for  defendants. 

THE  CHANCELLOR.  The  object  of  the  suit  is  to  have  a  just 
and  equitable  distribution  of  the  property  among  the  lawful  cre- 
ditors of  Samuel  Hewlings.  The  original  assignment  being  out 
of  the  way,  and  the  money  and  effects  being  collected  by  the 
complainant,  it  only  remained  to  ascertain  the  mode  in  which 
distribution  was  to  be  made.  The  master  has  calculated  the 
claims  and  interest  up  to  the  9th  of  August,  1814,  being  the 
date  of  the  last  assignment,  and  I  think  with  propriety.  The 
complainant,  as  assignee,  is,  upon  general  principles,  bound  to 
pay  all  lawful  debts  due  and  owing  by  the  insolvent  debtor,  up 
to  the  time  of  making  application  for  a  discharge  ;  and  if  this 
principle  is  to  prevail,  there  can  be  no  doubt  that  the  claim  in 
dispute  should  be  allowed,  if  just  in  itself.  But  the  difficulty  in 
this  case  arises  from  the  terms  of  the  decree  of  October,  1828. 
This  decree,  as  we  have  already  seen,  directs  a  dividend  among 
the  creditors  generally,  and  specifies  the  amount  found  due  to  the 
original  assignees  by  the  master's  report,  as  the  amount  on  which 
they  are  to  receive  dividends.  At  first  view,  the  meaning  of  the 
decree  appears  to  be  that  adopted  by  the  master,  and  such  con- 
struction would  seem  to  conform  best  to  the  words  of  the  decree ; 
and  yet  I  cannot  understand  why  it  is  so  framed,  as  to  bar  any 
claims  of  the  assignees  after  the  17th  of  December,  1811,  while 
at  the  same  time  the  claims  of  others  are  allowed  up  to  1814.  I 
do  not  find  that  they  have  forfeited  any  rights  as  general  credi- 


JULY  TERM,  1832.  575 

Prichett  v.  Ex'rs  of  Newbold  et  al. 

tors.  At  the  same  time  it  is  to  be  observed,  that  on  examination 
of  the  claims  presented  and  "allowed  by  the  master,  there  are  none 
subsequent  to  the  17th  of  December,  1811,  the  date  of  the  first  as- 
signment. It  does  not  appear  that  any  such  were  presented,  and 
no  question  has  been  raised  on  the  subject. 

I  think  the  better  construction  of  the  decree  is  this ;  that  the 
complainant  is  to  distribute  among  the  creditors  according  to  the 
provisions  of  the  insolvent  act ;  and  that,  in  so  doing,  he  is  to 
take  the* sums  found  due  to  Newbold,  Haines,  and  Isaac  Hew- 
lings,  as  the  sums  actually  due  without  further  examination,  up 
to  the  17th  of  December,  1811 — they  having  already  been  com- 
puted up  to  that  time.  That  computation  is  to  be  considered  by 
the  complainant  as  final  and  settled;  but  as  to  any  claims  not 
previously  adjusted,  they  are  to  stand  in  the  same  situation  as 
others.  At  all  events,  the  terms  of  the  decree  do  not  necessa- 
rily exclude  such  a  construction  ;  and  that  being  the  case,  I  feel 
bound  to  give  it  an  interpretation  which  shall  consist  with  equi- 
ty, and  the  principles  of  the  statute  upon  which  this  part  of  the 
decree  is  founded.  To  say  that  the  distribution  is  to  be  made 
agreeably  to  the  statute,  and  yet  to  exclude  a  debt  coming  with- 
in its  provisions,  without  any  cause  assigned,  is  a  contradiction 
which  the  court  cannot  adopt. 

My  conclusion,  therefore,  is,  that  the  claim  is  not  barred  by  the 
fair  construction  of  the  decree,  and,  if  right. in  itself,  should  be  al- 
lowed and  a  dividend  awarded  upon  it.  It  does  not  appear,  how- 
ever, that  the  master  has  examined  into  the  consideration  or  valid- 
ity of  the  claim.  He  has  merely  stated  it,  and,  conceiving  it  to  be 
excluded  by  the  decree,  has  disallowed  it,  without  any  inquiry  into 
the  merits. 

The  exception  must  be  allowed,  but  the  complainant  must 
have  an  opportunity  to  investigate  the  merits  of  the  claim,  if  he 
shall  desire  it. 

The  second  exception  relates  to  the  allowance  made  the  as- 
signee by  the  master. 

The  order  of  1828  directed  a  taxation  of  the  expenses  of  the 
suit,  and  of  the  allowance  to  be  made  the  assignee  for  trouble, 
time  and  expenses.  The  master  has  allowed  for  time,  trouble, 
and  expenses,  including  interest  for  payments  necessarily  made 


576  CASES  IN  CHANCERY. 

Prichett  v.  Ex'rs  of  Newbold  et  al. 

oefbre  any  funds  came  to  hand,  the  sum  of  nine  hundred  dol- 
lars. According  to  the  calculation  of  the  master,  which  is  made 
with  great  care  and  particularity,  the  interest  on  the  advance- 
ments amounts  to  three  hundred  and  fifty  dollars  and  ninety-five 
cents,  leaving  a  balance  of  five  hundred  and  forty-nine  dollars 
and  five  cents  as  a  compensation  to  the  complainant  for  all  his 
trouble,  care,  and  responsibility.  This  appears  to  be  a  large 
sum ;  but  when  it  is  considered  that  this  matter  has  been  pend- 
ing upwards  of  sixteen  years,  and  that  it  may  not  be  closed  un- 
der a  year  or  two  more,  (distribution  among  the  numerous  credi- 
tors being  not  yet  made,)  I  cannot  say  that  it  is  unreasonable, 
or  that  it  requires  the  interference  of  the  court.  No  complaint 
has  been  made  of  any  want  of  attention  or  faithfulness  in  the 
complainant.  If  the  interests  of  creditors  had  been  neglected  in 
his  hands,  the  case  would  be  altered  materially,  and  the  court  would 
take  care  not  to  reward  negligence. 

The  second  exception  is  disallowed. 

The  third  exception  relates  to  the  interest  allowed  upon  ad- 
vances. 

This  allowance  appears  to  me  to  be  correct,  especially  when  the 
items  are  all  exhibited,  as  in  this  case,  and  when  it  is  not  a  mere 
lumping  charge.  If  interest  has  been  received  upon  moneys  in 
hand,  since  the  property  has  been  collected,  it  would  be  right  that 
such  interest  should  be  accounted  for  in  the  final  settlement.  That 
matter  was  not  before  the  master,  and  is  not  necessarily  connected 
with  the  exception. 

The  third  exception  is  also  disallowed. 


JULY  TERM,  1832.  577 

Hendrickson  v.  Decow. 

JOSEPH   HENDRICKSON  v.  THOMAS    L.  SHOTWELL  AND  ELIZA- 
BETH HIS  WIFE— ON  BILL  FOR  RELIEF,  &c. 

THOMAS   L.  SHOTWELL  v.  JOSEPH   HENDRICKSON   AND  STACY 
DECOW'-ON  BILL  OF  INTERPLEADER,  &c. 


The  court  of  chancery,  and  every  other  court  in  New-Jersey,  has  the  power  at>4 
the  right,  to  ascertain  by  competent  evidence,  what  are  the  religious  princi- 
ples of  any  man  or  set  of  men  ;  when  civil  rights  are  thereon  to  depend,  or 
thereby  to  be  decided.  Page  633. 

This  court  cannot  inquire  into  the  doctrines  and  opinions  of  any  religious  society, 
for  the  purpose  of  deciding  whether  they  are  right  or  wrong;  but  may  in- 
quire iuto  them  as  facts  pointing  out  the  ownership  of  property.  Pages  671, 
682. 

If  a  fact  be  necessary  to  be  ascertained  by  the  court,  for  the  purpose  of  settling  a 
question  of  property,  it  is  the  duty  of  the  court  to  ascertain  it;  and  this 
must  be  done  by  such  evidence  as  the  nature  of  the  case  admits  of.  Page 
679. 

If  the  doctrines  held  by  any  religious  society  be  important  in  determining  a 
question  of  property ;  the  party  who  would  avail  themselves  of  their  doc- 
trines, must  prove  them.  Page  682. 

Where  a  fund  was  raised  by  members  of  a  religious  society  known  as  "  the 
Chesterfield  Preparative  Meeting  of  the  Society  of  Friends,  or  people  called 
Quakers,  at  Crosswicks,"  for  the  declared  purpose,  "  that  the  principal  should 
remain  a  permanent  fund,  under  the  direction  of  the  trustees  of  the  school 
at  Crosswicks,  to  be  chosen  by  the  said  Preparative  Meeting ;  and  the  inter- 
est should  be  applied  to  the  education  of  such  children  as  then  or  thereafter.- 
should  belong  to  the  same  Preparative  Meeting,  whose  parents  should  not 
be  of  ability  to  pay  for  their  education  ;" — this  fund  may  not  be  divided,  as 
often  as  this  body  shall  separate,  and  parts  of  it  .diverted  from  its  declared 
purpose,  and  appropriated  to  the  education  of  chifclren  of  persons  connected: 
with  other  religious  persuasions.  Page  670. 

The  trust  can  be  exercised,  only,  by  a  meeting  of  the  religious  society  of  Friends; 
and  the  fund  can  be  used,  only,  for  the  education  of  children  of  persons  be- 
longing to  a  meeting  of  that  society.  Page  670. 

It  is  a  body  of  Friends,  with  their  settled  and  known  characteristics  at  that  time, 
which  is  contemplated  in  the  trust.  Page  671. 

It  is  proper  and  legal,  that  the  court  should  notice  the  doctrine  of  the  Prepara- 
tive Meeting  which  is  to  superintend  the  expenditure  of  this  fund.  Page  683. 

A  separation  of  a  portion  of  the  religious  society  of  Friends  constituting  the 
yearly  meeting  of  the  society,  from  that  meeting,  does  not  necessarily  de- 
stroy or  impair  it,  nor  as  it  respects  its  legal  existence,  even  weaken  the 
original  institution.  Page  652. 

A  portion  of  any  religious  society  cannot  disfranchise  the  rest,  declare  the 
society  dissolved,  erect  among  themselves  a  new  body  within  the  limits  of 
the  ancient  society,  and  declare  that  to  be  the  ancient  society.  Pages  644-5-6., 

2  o 


578  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

Where  an  officer  of  a  religious  society  was  duly  appointed,  and  the  term  of  his 
office  does  not  cease  by  limitation  of  time,  the  presumption  is  that  he  re- 
mains in  office,  until  competent  evidence  of  his  due  removal  is  given  :  and 
whoever  claims  on  the  ground  that  his  office  has  ceased,  must  establish  it  by 
lawful  and  sufficient  proof.  Page  600. 

When  a  majority  of  an  elective  body  protest  against  the  election  of  a  proposed 
candidate,  and  do  not  propose  any  other  candidate,  the  minority  may  elect 
the  candidate.  Page  621. 

Semble.  That  where  a  donation  is  made  for  the  use  of  a  certain  religious  society 
at  a  particular  place,  the  right  is  local  and  vests  in  such  religious. society  at 
that  place ;  it  also  vests  in  a  society  at  that  place,  of  the  same  religious  per- 
suasion, holding,  and  professing  the  same  religious  opinions,  doctrine  and 
belief;  and  if  that  society  should  become  divided  in  religious  opinion,  and 
(separate  into  two  distinct  bodies,  holding  different  doctrines,  the  right  of 
property  would  remain  with  that  portion  of  the  society  which  held  the  same 
religious  opinions,  doctrine  and  belief,  which  the  original  society  held  at 
the  time  the  donation  was  made,  without  regard  to  the  fact  whether  they 
were  a  majority  or  minority  of  the  members  of  the  original  society. 


The  controversy  in  this  case,  which  arose  upon  a  bill  for  the 
foreclosure  of  a  mortgage,  grew  out  of  a  difference  of  religious 
views  and  feeling  that  had  arisen  in  the  society  of  Friends,  and 
excited  a  deep  interest  among  a  large  and  respectable  portion  of 
the  community.  The  society  had  its  origin  in  England  about  the 
middle  of  the  seventeenth  century,  and  was  introduced  into  this 
country  by  some  of  the  early  settlers  in  New-Jersey  and  Pennsyl- 
vania. Primary  meetings,  for  worship,  were  first  formed  by  mem- 
bers of  the'  society  residing  near  each  other  ;  a  monthly  meeting 
was  soon  after  formed  in  the  county  of  Burlington ;  and  upon  in- 
vitations from  this  monthly  meeting,  to  other  meetings  and  mem- 
bers of  the  society,  they  met  at  Burlington,  on  .the  third  first-day 
of  sixth  month,  (June,)  A.  D.  1681,  and  formed  the  first  yearly 
meeting  of  the  society  of  Friends.  This  meeting  was  increased  and 
enlarged  by  the  association  of  other  meetings  and  members  of  the 
society,  until  it  comprehended  all  the  members  of  the  society,  and 
their  meetings  and  judicatories  of  inferior  grade,  in  the  then  pro- 
vinces of  New-Jersey  and  Pennsylvania.  It  corresponded  with 
other  bodies  of  the  same  religious  society  in  other  provinces,  and 
with  the  yearly  meeting  pf  the  society  of  Friends  in  London  :  by 
which  it  was  recognized  as  a  yearly  meeting  of  the  society  of 
Friends. 


JULY  TERM,  1832.  579 

Hendrickson  v.  Decow. 

The  yearly  meeting  thus  established,  from  1684  to  1761  was 
held  alternately  at  Burlington  and  Philadelphia:  since  that  period 
it  has  been  held  altogether  in  Philadelphia.  The  day  of  meeting 
has  been  several  times  changed,  until  1798,  since  which  period,  by 
a  rule  of  the  meeting,  it  has  uniformly  met  on  the  third  second-day 
of  the  fourth  month  (April)  in  each  year,  at  the  Friends'  meeting 
house  in  Arch  street ;  and  has  been  known  as  "  the  Philadelphia 
Yearly  Meeting  of  the  society  of  Friends." 

Soon  after  the  yearly  meeting  was  established,  the  Burlington 
quarterly  meeting  was  formed,  and  the  system  of  ecclesiastical 
government  of  the  society  in  England  adopted  here.  According  to 
this  system,  the  meetings  of  the  society  are  of  two  kinds;  meetings 
for  worship,  and  for  discipline  or  business.  They  are  four  in  num- 
ber, connected  together  and  rising  in  gradation  as  follows : — Pre- 
parative meetings,  consisting  of  all  the  members  of  one  meeting  for 
worship ;  which  are  connected  with  and  subordinate  to  a  monthly 
meeting,  consisting  of  several  preparative  meetings;  which  is  con- 
nected with  and  subordinate  to  a  quarterly  meeting,  consisting  of 
several  monthly  meetings;  and  which  is  connected  with  and  sub- 
ordinate to  the  yearly  meeting,  which  is  the  head  of  the  whole 
society  within  its  jurisdiction. 

Besides  these,  there  is  a-  "  meeting  for  sufferings,"  which  is  a  sub- 
ordinate department  of  the  yearly  meeting,  to  exercise  care  during 
the  intervals  between  the  stated  sessions  of  that  body. 

The  "  Chesterfield  preparative  meeting*"  of  the  Society  of 
Friends,"  was  established  at  an  early  period,  and  was  connected 
with  the  Chesterfield  monthly  meeting  and  Burlington  quarterly 
meeting,  which  was  subordinate  to  the  Philadelphia  yearly  meeting 
held  in  Arch  street. 

In  1778  the  yearly  meeting  reiterated  a  previous  recommen- 
dation to  the  quarterly  meetings,  and  through  them  to  the 
monthly  and  preparative  meetings,  to  collect  funds  for  the  estab- 
lishment and  support  of  schools  under  the  care  of  committees  to 
be  appointed  by  the  several  monthly  or  preparative  meetings. 
To  promote  this  object  a  subscription  was  opened,  and  a  number 
of  Friends,  styling  themselves  "members  of  the  preparative 
m.eeting  of  the  people  called  Quakers  at  Crosswicks,"  subscribed 
liberal  sums,  which  they  engaged  to  pay  "to  the  treasurer  of  the 


680  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

school  at  Crosswicks,  begun  and  set  up  under  the  care  &1  Ihe 
preparative  meeting :"  declaring  the  purpose  of  these  donations 
to  be,  "  that  the  principal  so  subscribed  is  to  be  and  remain  a 
permanent  fund,  under  the  direction  of  the  trustees  of  the  said 
school,  now  or  hereafter  to  be  chosen  by  the  said  preparative 
meeting,  and  by  them  laid  out  or  lent  on  interest,  in  such  man- 
ner as  they  shall  judge  will  best  secure  an  interest  or  annuity: 
which  interest  or  annuity  is  to  be  applied  to  the  education  of 
such  children  as  now  do  or  hereafter  shall  belong  to  the  same 
preparative  meeting,  whose  parents  are  or  shall  not  be,  of  ability 
to  pay  for  their  education."  The  foundation  of  the  school  fund 
being  thus  laid,  additions  were  afterwards  made  to  it,  by  dona- 
tions from  individuals  and  contributions  from  the  funds  of  the 
monthly  and  quarterly  meetings,  for  the  same  purpose.  Upon 
this  basis  the  school  fund  was  established,  and  as  early  as  1790 
a  school  was  commenced,  and  has  since  been  continued,  at  Cross- 
wicks. 

In  1816  Joseph  Hendrickson  was  appointed,  by  the  Chester- 
field preparative  meeting  of  the  society  of  Friends  at  Crosswicks, 
"  treasurer  of  the  school  fund  of  the  meeting  at  Crosswicks."  In 
April,  1821,  he  loaned  two  thousand  dollars  of  this  fund  to  Thomas 
L.  Shotwell  upon  bond  and  mortgage;  upon  which  the  interest 
•was  regularly  paid  up  to  2d  April,  1827. 

The  society  of  Friends  in  New-Jersey  and  Pennsylvania  had 
continued  in  unity  and  great  harmony,  under  the  government 
and  control  of  the  yearly  meeting  in  Philadelphia,  from  its  first 
establishment  at  Burlington,  until  a  few  years  before  the  com- 
mencement of  the  present  suit;  when  differences  of  religious 
opinions  and  feelings  arose,  which  were  soon  disseminated  through 
the  society  to  a  great  extent,  and  produced  a  division  of  the  society 
into  two  parties,  marked  by  characteristic  differences  of  opinion 
upon  religious  doctrines,  since,  to  distinguish  them,  denominated 
the  "  Orthodox "  and  the  "  Hicksite "  parties  or  portions  of  the 
society  of  Friends. 

In  1827  the  yearly  meeting  assembled  at  the  stated  time  and 
place,  the  third  second-day  of  fourth  month,  (April,)  at  the 
meeting  house  in  Arch  street.  They  transacted  business,  con- 
tinued in  session  to  the  end  of  the  week,  and  then  regularly  ad- 


JULY  TERM,  1832.  581 


Hendrickson  v.  Decow. 


journed  to  meet  again  at  the  same  place  on  the  third  second-day  of 
the  fourth  month  in  the  next  year. 

At  this  meeting,  however,  the  divided  state  of  the  society  be- 
came manifest;  differences  of  opinion  and  feeling  prevailed ;  and 
on  the  19th,  20th  and  21st  days  of  April,  and  during  the  session 
of  the  yearly  meeting,  a  portion  of  the  members,  dissatisfied  with 
some  of  the  proceedings  of  the  yearly  meeting,  and  especially  with 
the  appointment  of  clerk  and  of  committees  to  visit  subordinate 
meetings — held  another  meeting,  of  those  who  united  with  them 
in  opinion,  in  Green  street,  at  which  an  address  to  the  society 
of  Friends  was  agreed  on  and  signed  by  order  of  the  meeting ;  in 
which,  after  alluding  to  the  divided  state  of  the  society  in  doctrine 
and  feeling,  and  to  measures  of  the  yearly  meeting  deemed  oppres- 
sive, they  state,  their  conviction  "  that  the  period  had  fully  come  in 
which  they  ought  to  look  to  making  a  quiet  retreat  from  that  scene 
of  confusion."  This  meeting  adjourned  to  meet  again  on  the  fourth 
day  of  sixth  month,  (June,)  1827;  at  which  time  they  again  met 
at  the  same  place,  and  agreed  upon  and  published  a  second  address 
to  the  society  of  Friends.  In  this  address,  after  alluding  to  the 
disorder  and  division  in  the  society,  expressing  their  regret  at  its 
continuance,  and  declaring,  that  to  them  there  now  appeared  to  be 
no  way  to  regain  the  harmony  and  tranquillity  of  the  body,  but  by 
withdrawing  themselves,  not  from  the  society  of  Friends,  nor  from 
the  exercise  of  its  salutary  discipline,  but  frgui  religious  commu- 
nity with  those  who  had  introduced  and  seemed  disposed  to  con- 
tinue such  disorders  among  them."  The  address  concludes  by 
proposing  for  consideration,  the  propriety  and  expediency  "  of  hold- 
ing a  yearly  meeting  of  Friends  in  unity  with  us,  residing  within, 
the  limits  of  those  quarterly  meetings  heretofore  represented  in  the 
yearly  meeting  held  in  Philadelphia,"  on  the  third  second-day  of 
tenth  month,  (October,)  then  next. 

Pursuant  to  this  proposition,  a  meeting  of  those  members  of 
the  society  who  united  in  this  measure,  was  held,  on  the  third 
second-day  of  tenth  month,  1827,  in  Green  street,  Philadelphia; 
at  which  thoy  formed  a  yearly  meeting,  and  adjourned  to  meet 
again  on  the  second  second-day  of  fourth  month,  (April,)  1828, 
in  Green  street,  Philadelphia  ;  at  which  time  and  place  a  yearly 


582  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

meeting  of  this  portion  of  the  society  of  Friends  was  accordingly 
held,  and  has  since  continued  to  be  holden  annually. 

This  division  of  the  ancient  yearly  meeting  of  the  society  of 
Friends  in  Philadelphia,  in  April,  1827,  was  followed  by  corres- 
ponding divisions  of  the  subordinate  meetings,  under  its  control 
and  jurisdiction;  especially  of  the  Burlington  quarterly  meeting, 
which  separated  in  eleventh  month,  1827  :  the  Chesterfield  monthly 
meeting,  which  in  tenth  month,  1827,  separated  into  two  bodies, 
one  of  which  appointed  delegates  to  attend  the  yearly  meeting  held 
in  Green  street,  in  Philadelphia,  in  that  month.  The  separation  in 
the  Chesterfield  preparative  meeting  at  Crosswicks,  took  place  in 
twelfth  month,  1827,  when  they  were  divided  into  two  distinct 
bodies  or  meetings,  each  of  which  called  themselves  "  the  Chester- 
field preparative  meeting  of  the  society  of  Friends  at  Crosswicks," 
and  claim  a  right  to  have  the  control  and  disposition  of  the  fund 
for  the  support  of  the  school  at  Crosswicks. 

In  first  month,  1828,  one  of  these  meetings  assembled  to  ap- 
point trustees  of  the  school  fund,  and  at  that  meeting  also  ap- 
pointed Stacy  Decow,  one  of  the  parties  to  this  suit,  treasurer  of 
the  said  fund.  This  meeting,  by  which  Decow  was  appointed,  is 
attached  to  the  Chesterfield  monthly  meeting,  and  Burlington 
quarterly  meeting,  which  unites  with  and  acknowledges  the  Green 
street  yearly  meeting;  which  they  insist  is  the  original  "Philadel- 
phia yearly  meeting  of  the  society  of  Friends,"  revived  and  re- 
placed on  its  ancient  foundations. 

Joseph  Hendrickson  belongs  to  the  other  preparative  meeting 
of  the  society  of  Friends  at  Crosswicks ;  and,  as  they  insist,  still 
remains  the  treasurer  of  the  school  fund,  his  office  being  during 
the  pleasure  of  the  meeting,  and  they  having  taken  no  steps  to 
remove  him  or  appoint  another  treasurer.  This  preparative  meet- 
ing is  attached  to  the  Chesterfield  monthly  meeting,  and  Burling- 
ton quarterly  meeting,  which  unites  with  and  adheres  to  the  Phila- 
delphia yearly  meeting  in  Arch  street,  as  the  head  of  the  society, 
which  they  say  is  the  true  ancient  "  Philadelphia  yearly  meeting 
of  the  society  of  Friends." 

After  this  separation  took  place,  and  the  appointment  of  De- 
cow  as  treasurer,  Thomas  L.  Shotwell,  the  mortgagor,  refused 


JULY  TERM,  1832.  583 

Hendrickson  v.  Decow. 

to  acknowledge  Hendrickson  as  the  treasurer  of  the  fund  for  the 
support  of  the  school  at  Crosswicks,  or  to  pay  him  the  interest 
on  the  bond  and  mortgage.  Upon  this  refusal,  Hendrickson  ex- 
hibited the  bill  in  this  case,  for  foreclosure  of  the  mortgage.  In 
his  bill,  after  stating  the  origin  and  purpose  of  the  school  fund, 
his  appointment  as  treasurer,  the  loaning  of  the  money  and  the 
mortgage,  he  sets  forth  the  pretension  on  the  part  of  Shotwell 
that  Stacy  Decow  was  the  lawful  treasurer  of  the  school  fund, 
and  entitled  to  receive  the  money ;  and  for  the  purpose  of  rebut- 
ting this  pretension,  sets  forth  particularly  the  controversy  in  the 
society,  and  their  division  into  two  parties,  as  above  mentioned. 
He  alleges  that  the  ground  of  this  division  was  on  account  of  re- 
ligious doctrine.  He  charges  that  the  following  religious  doctrines 
have  always  been  held  and  maintained  by  the  society  of  Friends 
or  people  commonly  called  Quakers  : — 

In  the  first  place,  although  the  society  of  Friends  have  seldom 
made  use  of  the  word  Trinity,  yet  they  believe  in  the  Father,  the 
Son  or  Word,  and  the  Holy  Spirit.  That  the  Son  was  God,  and 
became  flesh.  That  there  is  one  God  and  Father,  of  whom  are 
all  things.  That  there  is  one  Lord  Jesus  Christ,  by  whom  all 
things  were  made,  who  was  glorified  with  the  Father  before  the 
world  began,  who  is  God  over  all,  blessed  for  ever.  That  there 
is  one  Holy  Spirit,  the  promise  of  the  Father  and  the  Son  ;  and 
leader,  and  sanctifier,  and  comforter  of. his  people:  and  that 
these  three  are  one,  the  Father,  the  Word,  and  the  Spirit. 
That  the  principal  difference  between  the  people  called  Quakers, 
and  other  protestant  trinitarian  sects,  in  regard  to  the  doctrine  of 
the  Trinity,  is,  that  the  latter  attach  the  idea  of  individual  per- 
sonage to  the  three,  as  what  they  consider  a  fair  logical  inference 
from  the  doctrines  expressly  laid  down  in  the  Holy  Scriptures. 
The  people  called  Quakers,  on  the  other  hand,  considering  it  a 
mystery  beyond  finite,  human  conception,  take  up  the  doctrine 
as  expressly  laid  down  in  the  Scripture  ;  and  have  not  considered 
themselves  warranted  in  making  deductions,  however  specious. 

In  the  second  place,  the  people  called  Quakers  have  always 
believed  in  the  atonement ;  that  the  divine  and  human  nature  of 
Jesus  Christ  the  Saviour,  were  united ;  that  thus  united  he  suffer-, 
ed ;  and  that  through  his  suffering,  death  and  resurrection,  ho 


584  CASES  IN  CHANCERY. 


Hendrickson  v.  Decow. 


atoned  for  the  sins  of  men.  That  the  Son  of  God  in  the  fulness 
of  time  took  flesh,  became  perfect-  man  according  to  the  flesh, 
descended  and  came  of  the  seed  of  Abraham  and  David.  That 
being  with  God  from  all  eternity,  being  himself  God,  and  also  in 
time  partaking  of  the  nature  of  man,  through  him  is  the  good- 
ness and  love  of  God  conveyed  to  mankind  ;  and  that  by  him 
again  man  reeeiveth  and  partaketh  of  these  mercies.  That 
Christ  took  upon  him  the  seed  of  Abraham,  and  his  holy  body 
and  blood  was  an  offering  and  a  sacrifice  for  the  sins  of  the  whole 
world. 

In  the  third  place,  the  people  called  Quakers  believe  that 
the  Scriptures  are  given  by  inspiration ;  and  when  rightly  inter- 
preted are  unerring  guides ;  and,  to  use  the  language  adopted  by 
them,  they  are  able  to  make  wise  unto  salvation  through  faith 
which  is  in  Christ  Jesus.  They  believe  that  the  Spirit  still  ope- 
rates upon  the  souls  of  men,  and  that  when  it  does  really  and 
truly  so  operate,  it  furnishes  the  primary  rule  of  faith.  That 
the  Scriptures  proceeding  from  it,  must,  be  secondary  in  reference 
to  this  primary  source,  whence  they  proceed  ;  but  inasmuch  as 
the  dictates  of  the  Spirit  are  always  true  and  uniform,  all  ideas 
and  views  which  any  persons  may  entertain  repugnant  to  the  doc- 
trines of  the  Scriptures,  (which  are  unerring,)  must  proceed  from 
false  lights. 

That  such  are  the  doctrines  entertained  and  adopted  by  the 
ancient  society  of  Friends ;  and  that  the  same  doctrines  are  still 
entertained  by  the  Orthodox  party  aforesaid,  to  which  party  the 
complainant  belongs.  That  these  doctrines  are  with  the  said  re- 
ligious society  fundamental ;  and  any  individual  entertaining 
sentiments  and  opinions  contrary  to  all  or  any  of  the  above  men- 
tioned doctrines,  is  held  not  to  be  of  the  same  faith  with  the 
society  of  Friends  or  people  called  Quakers,  and  is  treated  accord- 
ingly. 

The  bill  further  charges,  that  the  Hicksite  party  aforesaid,  do 
not  adopt  and  believe  in  the  above  mentioned  doctrines,  but  en- 
tertain opinions  entirely  and  absolutely  repugnant  and  contrary 
thereto. 

In  regard  to  the  first  religious  doctrine  above  named,  the 
Hicksite  party  aforesaid  believe,  that  Jesus  Christ  was  a  mere 


JULY  TERM,  1832.  585 

Hendrickson  v.  Decow. 

man,  divinely  inspired,  partaking  more  largely  of  divine  inspi- 
ration than  other  men  •  but  that  others,  by  resorting  to  the  same 
means,  and  using  the  same  exertions,  may  receive  the  same  por- 
tion or  measure  of  divine  inspiration.  That  Jesus  Christ,  as 
well  as  the  apostles  and  prophets,  never  has  been  and  never  can. 
be  set  above  other  men.  And  though  of  late,  the  said  Hicksite 
party  sometimes  ascribe  divinity  to  Jesus  Christ,  yet  they  do  it 
only  in  a  figurative  sense,  from  the  circumstance  of  his  partaking 
more  largely  than  other  men  of  divine  inspiration.  In  every 
other  respect  they  consider  him  a  mere  man.  They  do  not  be- 
lieve that  he  partakes  of  the  divine  as  well  as  human  nature ; 
that  he  is  one  and  the  same  essence  with  God,  with  that  supreme 
and  omnipotent  Being  who  presides  over  and  governs  the  uni- 
verse. 

In  respect  to  the  second  religious  doctrine  above  mentioned,  the 
Hicksite  party  deny  the  doctrine  of  the  atonement  above  set  forth, 
and  they  contend  and  believe  that  man  may  have  access  to  his 
God  without  any  Mediator.  They  contend  that  the  crucifixion 
and  sufferings  of  Christ,  if  an  atonement  at  all,  were  an  atonement 
only  for  the  legal  sins  of  the  Jews. 

In  respect  to  the  third  doctrine  above  mentioned,  the  Hicksite 
party  deny  the  certainty  and  divine  inspiration  of  the  Holy  Scrip- 
tures, and  hold  that  they  contain  doctrines  and  injunctions  which 
are  incorrect ;  and  that  they  are  a  mere  shadow.  • 

That  these  discrepancies  in  religious  doctrines  above  mentioned, 
between  the  Hicksite  and  the  Orthodox  parties,  are  radical  and 
all-important  in  the  opinion  of  the  complainant  and  his  party,  in 
reference  to  the  principles  and  tenets  of  religion,  as  held  by  the 
ancient  fathers  of  this  religious  society.  The  Orthodox  party,  be- 
lieving, as  they  firmly  do,  that  the  doctrines  entertained  by  the 
Hicksite  party,  strike  at  the  foundation  and  main  pillars  of  the 
Christian  religion;  that  in  consequence  of  these  differences  in  doc- 
trine, the  Hicksite  party  are  not  in  the  same  faith  with  them,  and 
the  ancient  religious  society  of  Friends. 

The  bill  then  charges,  that  during  the  yearly  meeting  of  the 
Society  of  Friends  in  Philadelphia,  which  commenced  on  the 
third  second-day  of  April,  1827,  the  Hicksite  party  held  several 
private  irregular  meetings  of  their  own  party,  which  no  other 


586  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

members  of  the  society  attended,  or  were  invited  to  attend  ;  at 
which  they  agreed  on  and  published  an  address  to  the  society. 
That  they  again  met  in  sixth  month,  (June,)  and  published  ano- 
ther address,  among  other  things  proposing  for  consideration  the 
propriety  of  holding  a  yearly  meeting  of  Friends  in  unity  with 
themselves,  and  recommending  another  meeting  to  be  held  in 
Philadelphia  on  the  third  second  day  in  October  then  next.  That 
in  pursuance  of  this  recommendation  they  met  in  Philadelphia  in 
October,  1827,  and  then  and  there,  contrary  to  the  discipline, 
constitution  and  government  of  the  society  of  Friends,  formed  a 
new  yearly  meeting  of  their  own  party :  which  was  adjourned  to 
the  second  Monday  in  April,  1828.  That  on  that  day  they  met, 
and  held  their  new  yearly  meeting  in  Green  street,  Philadel- 
phia. 

That  on  the  third  Monday  in  April,  1827,  pursuant  to  adjourn- 
ment from  the  preceding  year,,  the  Orthodox  party  held  the  ancient 
yearly  meeting  of  the  Society  of  Friends,  in  Arch  street ;  which 
still  continues  to  be  holden  by  them  on  .the  third  Monday  in  April 
annually;  which  they  say  is  the  ancient  "Philadelphia  yearly 
meeting  of  the  society  of  Friends,"  and  which  is  recognized  by  the 
ancient  yearly  meeting  in  London  as  a  regular  yearly  meeting  of 
the  Society  of-  Friends,  and  is  in  correspondence  and  fellowship 
with  them  :  whereas  the  new  yearly  meeting  of  the  Hicksite 
party  is  not  reoognized  by  the  yearly  meeting  of  London,  and  holds 
no  correspondence  with  them.  That  the  Hicksite  and  Orthodox 
parties  are  thus  completely  divided,  and  no  longer  form  two 
parties  of  the  same  society,  but  two  distinct  religious  communities. 
That  the  Hicksite  party  have  seceded,  not  only  from  the  faith,  but 
from  the  religious  institutions  and  government  of  the  society  of 
Friends. 

The  bill  likewise  charges,  that  these  religious  dissensions  and 
divisions  exist  in  the  Burlington  quarterly,  and  the  monthly  and 
preparative  meetings  at  Crosswicks.  That  the  Hicksite  party  and 
the  Orthodox  party  there  hold  separate  meetings  for  business  and 
worship;  the  former  being  under  the  jurisdiction  of  the  new 
yearly  meeting  held  in  Green  street,  and  the  latter  under  the  ju- 
risdiction of  the  ancient  Philadelphia  yearly  meeting  held  in  Arch 
street;  which  does  not  recognize  the  preparative  meeting  at 


JULY  TERM,  1832.  587 

Hendrickson  v.  Decow. 

Cress  wicks  held  by  the  Hicksite  party,  by  which  Stacy  Decow  was 
appointed  treasurer. 

Upon  the  filing  of  this  bill,  Thomas  L.  Shotwell,  the  defend- 
ant, exhibited  a  bill  of  interpleader  against  Hendrickson  and 
Decow,  the  two  adverse  treasurers  of  the  school  fund  ;  in  which 
he  sets  forth  the  claims  and  pretensions  of  both  the  said  parties, 
respectively  ;  and  that  by  reason  of  these  conflicting  claims  he  is 
in  danger  of  being  greatly  harassed  on  account  of  his  said  bond 
and  mortgage  ;  which  he  offers  to  pay,  on  being  indemnified  by  the 
decree  of  the  court. 

To  this  bill  Hendrickson  filed  an  answer,  in  which  he  reite- 
rates and  insists  on  the  various  grounds  charged  in  his  original 
bill. 

Decow,  in  his  answer,  admits  the  origin,  establishment  and 
purpose  of  the  school  fund,  as  above  set  forth.  That  the  Ches- 
terfield preparative  meeting  of  the  society  of  Friends  at  Cross- 
wicks,  have  a  right  to  appoint  trustees  of  the  said  school  fund, 
and  are  entitled  to  the  control,  use  and  disposition  thereof.  That 
the  meeting  also  appoints  the  treasurer,  who  holds  his  office  du- 
ring the  pleasure  of  the  meeting.  He  admits  that,  in  1816,  Jo- 
seph Hendrickson  was  appointed  by  the  said  meeting,  treasurer 
of  the  said  school  fund  ;  and  that  he  made  the  loan  to  Shotwell 
upon  bond  and  mortgage  :  admits  the  filing  of  the  original  bill 
and  bill  of  interpleader,  as  above  stated,  but  says  he  denies  many 
of  the  charges  contained  in  the  original  bill.* 

He  alleges,  among  other  things,  that  the  preparative  meeting 
of  the  society  of  Friends  at  Crosswicks ;  which  comprised  at 
least  two-thirds  of  the  original  subscribers  and  contributors  to  the 
said  school  fund  and  their  lawful  representatives,  and  were  a 
lawful  majority  of  the  regular  and  lawful  members  of  the  Ches- 
terfield preparative  meeting  of  the  society  of  Friends  or  people 
called  Quakers  at  Crosswicks,  and  had  the  lawful  right  to  ap- 
point the  treasurer  and  trustees  of  the  said  school  fund,  and  right 
to  the  care,  use  and  disposition  thereof;  on  the  31st  day  of  first 
month,  1828,  appointed  him  (Decow)  treasurer  of  the  said  school 
fund,  and  successor  of  the  said  Joseph  Hendrickson,  and  that  he 
now  is  the  treasurer,  and  entitled  to  the  money  due  on  said  bond 
and  mortgage. 


588  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

He  says,  that  the  religious  society  of  Friends  are  a  well  known 
denomination  of  Christian  professors,  who  became  associated 
under  that  name  in  England  about  the  middle  of  the  seventeenth 
century.  That  they  early  adopted  a  system  of  discipline,  which 
has  continued  in  use  ever  since :  the  rules  and  regulations  of 
which  relate,  partly  to  the  preservation  of  a  decent  and  comely 
order  in  its  internal  polity — partly  to  the  observance  of  the  prin- 
ciples of  morality  and  justice  by  all  belonging  to  it — and  partly 
to  the  maintenance  of  its  peculiar  testimonies ;  which  rules  are 
subject  to  alteration,  modification  and  revision  by  the  society, 
and  have  been  revised,  altered  and  modified,  from  time  to  time, 
as  circumstances  appeared  to  require.  That  the  said  society, 
in  reference  to  its  members,  is  a  pure  democracy ;  all  its  members 
having  equal  rights ;  neither  ministers,  elders,  clerks  or  other  offi- 
cers having  any  pre-eminence  over  their  brethren,  in  right,  au- 
thority, rank  or  privilege.  That  the  society  in  England  have  a 
yearly  meeting,  and  the  society  in  this  country  have  yearly 
meetings,  but  the  said  yearly  meetings  are  wholly  independent  of 
each  other,  as  well  in  their  establishment,  as  in  their  government 
and  authority. 

He  admits  the  introduction  of  the  society  into  this  country,  and 
the  establishment  of  the  preparative,  monthly,  quarterly  and 
yearly  meetings,  as  stated  ;  and  says  that  the  executive  power, 
as  relates  to  discipline,  is  lodged  in  the  several  monthly  meet- 
ings. That  the  quarterly  meetings  are  merely  a  larger  meeting 
of  the  members  of  the  monthly  meetings,  and  established  by 
them  ;  and  the  yearly  meetings  are  only  a  larger  meeting  of  the 
members  of  the  same  monthly  meetings ;  which  are  represented 
through  their  different  quarters,  by  members  therein  appointed, 
merely  as  organs  of  communication,  that  all  parts  of  the  society 
may  be  represented,  but  not  placing  in  their  hands  any  control 
over  their  brethren  :  the  power  remaining  in  the  brethren  at  large, 
the  great  democratic  body  ;  to  whom  only  the  name,  title  and 
authority  of  the  yearly  meeting  belong. 

That  the  superior  power  resides  in  the  individual  members  of 
the  several  meetings ;  therefore  the  monthly  meeting,  being  es- 
tablished by  mutual  consent  and  agreement  of  the  members  of 
the  society,  delegating  to  it  certain  powers ;  and  the  quarterly 


JULY  TERM,  1832.  589 


Hendrickson  v.  Decow. 


and  yearly  meetings  each  having  their  powers  and  duties  dele- 
gated, which  are  defined  and  regulated  by  the  rules  contained  in  a 
book  of  discipline,  can  have  no  other  or  greater  rights  or  powers 
than  those  therein  granted  to  them  :  what  is  not  thus  granted  re- 
mains with  the  individual  members  of  the  society,  the  original  pos- 
sessors of  the  whole  power. 

That  in  the  yearly  meeting,  such  regulations  as  from  time  to  time 
appear  expedient,  and  tend  to  the  good  of  the  whole  society,  are 
proposed  and  agreed  on,  and  comprehended  in  a  book  of  disci- 
pline; and  all  questions  are  resulted  by  the  verbal  or  silent  ac- 
quiescence of  the  members  collected,  and  not  by  any  order  of 
members  as  having  a  rank  or  authority  in  the  meeting  above 
others.  If  any  new  proposition  be  made,  which  does  not  accord 
with  the  views  of  the  members  generally,  it  is  suspended,  or  dis- 
missed. It  does  not  of  right  review  the  proceedings  of  the  sub- 
ordinate meetings,  except  in  the  single  case  of  an  appeal,  made 
by  a  member  considering  himself  aggrieved  by  a  monthly  meet- 
ing in  disowning  him;  and  recourse  to  it  is  seldom  had  from  the 
subordinate  meetings,  except  for  advice,  in  cases  of  uncommon 
difficulty  arising  in  monthly  or  quarterly  meetings.  And  all 
questions  and  matters  submitted  to  a  preparative,  monthly,  quar- 
terly or  other  meeting  of  the  society  of  Friends,  in  relation  to 
the  religious  or  temporal  affairs  of  the  society,  are  determined  by 
the  voice  or  consent  of  the  majority  preseuL  ascertained  either  by 
their  expressed  assent  or  silent  acquiescence. 

That  the  said  society  of  Friends  hath  been  preserved  in  a  great 
degree  of  harmony  until  lately,  when  a  few  individuals,  who 
had  long  been  continued  in  important  stations,  began  to  assume 
an  authority  over  their  brethren,  never  delegated  to  them ;  and 
attempted  to  impose  upon  the  yearly  meeting,  a  document  in  a 
form  designed  to  operate  as  a  written  creed,  adapted  to  their 
own  particular  views,  and  subversive  of  that  freedom  of  thought 
and  individual  opinion  which  the  society  of  Friends  had  always 
cherished  and  maintained  as  an  unalienable  right.  That  such 
document  was  promptly  rejected  by  the  yearly  meeting ;  and  it 
soon  became  manifest  that  a  party  was  formed,  assuming  the 
character  and  title  of  the  Orthodox  ;  and  a  line  of  discrimination 
was.  attempted  to  be  drawn  through  the  different  meetings,  in 


590  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

order  to  fill  every  active  station  with  those  under  their  particular 
influence,  or  actuated  by  a  common  object.  Approved  ministers 
were  publicly  opposed ;  and  faithful  members,  who  bore  a  testi- 
mony against  their  systematical  declension  from  the  principles  and 
practice  of  the  society,  were  actually  proscribed,  and  publicly 
disowned. 

These  efforts  to  monopolize  a  power  before  unknown  to  the 
society,  subversive  of  equal  rights,  introducing  disorder  and  con- 
fusion, and  preventing  the  orderly  course  of  business  in  the 
monthly  and  quarterly  meetings,  were  continued  until  the  yearly 
meeting  in  fourth  month,  1827,  when  a  clerk  was  forced  upon 
the  said  meeting  by  the  Orthodox  party,  in  decided  opposition 
to  the  voice  of  a  large  majority  of  the  representatives,  and  open- 
ly declared  judgment  of  a  large  body  of  Friends,  expressed  at 
the  time.  By  this  and  other  party  acts,  they  broke  the  compact 
which  had  long  bound  the  meeting  together  as  a  baad  of  breth- 
ren ;  and  the  business  that  was  done  at  that  meeting  was  mainly 
the  acts  of  that  party,  and  not  of  the  whole  body.  More  espe- 
cially, after  having  agreed  in  the  opinion  that  the  yearly  meeting 
was  not  then  in  a  situation  to  consider  and  act  upon  divers  im- 
portant subjects,  contained  in  reports  from  quarterly  meetings; 
the  said  Ortho'dox  party  did,  at  the  last  sitting  of  the  said  meet- 
ing, appoint  a  large  committee  of  their  own  party  exclusively,  to 
go  down  to  the  inferior  meetings  to  take  care  of  their  own  mem- 
bers ;  although  the  appointment  of  a  committee  was  strongly  op- 
posed at  the  time,  by  a  large  number  of  Friends,. and  a  majority 
of  the  meeting. 

At  this  last  sitting  of  the  meeting,  after  Friends  had  fully  as- 
certained that  all  their  endeavors  to  have  the  business  done  as 
the  acts  of  the  meeting,  not  as  those  of  the  said  party,  were 
unavailing;  and  having  been  deprived  from  participating  in  the 
business;  they  ceased  their  further  endeavors  to  participate  there- 
in :  and  the  adjournment  which  took  place  was  the  exclusive  act 
of  the  orthodox  party,  and  not  of  the  body  of  the  society  of 
Friends,  and  therefore  not  binding  upon  the  meeting.  And  inas- 
much as  the  larger  part  of  the  members  of  the  said  yearly  meet- 
ing, could  not  conscienciously  consent  to  meet  again,  in  the  same 
capacity,  with  the  said  Orthodox  party];  and  there  being  no  con- 


JULY  TERM,  1832.  591 

Hendrickson  v.  Decow. 

stitutional  time  for  the  assembling  of  the  yearly  meeting;  the 
time  of  holding  it  was  changed  to  the  time  it  is  now  held,  to  wit, 
on  the  second  second-day  of  fourth  month ;  which  the  society  of 
Friends  might  lawfully  do,  without  forfeiting  their  rights  by  a 
mere  variation  in  the  time  and  place  of  meeting;  which  is  legiti- 
mately subject  to  their  control  and  appointment. 

The  subsequent  course  pursued  by  Friends,  was  the  act  of  the 
main  body,  in  the  exercise  of  the  original  powers  vested  in  them, 
in  order  to  the  attainment  of  that  peace  and  harmony  for  which 
they  had  so  long  been  distinguished.  In  pursuing  which,  the 
said  yearly  meeting  assembled  again  on  the  second  second-day 
of  fourth  month,  1828,  and  is  now  settled  on  its  ancient  founda- 
tions and  principles,  comprising  full  three-fourths  of  the  whole 
body  of  its  former  members ;  who  are  united  in  the  same  system 
of  discipline,  maintaining  the  same  testimonies,  and  holding  the 
same  religious  faith  as  their  forefathers,  the  ancient  society  of 
Friends.  In  which  meeting,  all  the  quarterly  meetings  previ- 
ously composing  it,  are  now  represented.  The  defendant  denies, 
therefore,  that  it  is  a  new  yearly  meeting  within  the  pale  of  one 
already  in  existence. 

The  defendant  farther  says,  the  society  of  Friends  acknow- 
ledge no  head  but  Christ  and  no  principle  of  authority  or  go- 
vernment in  the  church,  but  the  love  and  power  of  God  opera- 
rating  on  the  heart,  and  thence  influencing  the  judgment,  and 
producing  a  unity  of  feeling,  brotherly  sympathy  and  conde- 
scension to  each,  other.  That  the  great  fundamental  principle  of 
the  society — the  Divine  light  and  power  operating  on  the 
soul — being  acknowledged  by  all  its  members,  as  the  effective 
bond  of  union  ;  the  right  of  each  individual,  to  judge  of  the  true 
meaning  of  scripture  testimony  relative  to  the  doctrines  of  Chris- 
tianity, according  to  the  best  evidence  in  his  own  mind,  uncon- 
trolled by  the  arbitrary  dictation  of  his  equally  fallible  fellow  man  ; 
has  been  tacitly,  as  well  as  explicitly,  acknowledged  by  the  so- 
ciety. 

The  defendant  avers  and  insists,  that  the  said  Chesterfield 
preparative  meeting  of  Friends  at  Crosswicks,  to  which  he  be- 
longs, is  the  same  meeting  under  whose  care  the  school  fund 
was  placed  by  the  contributors  thereto,  and  are  identified  with 


592  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

them  in  due  and  regular  succession  ;  and  are  a  part  of  the  an- 
cient society  of  Friends.  That  they  believe  in  the  Christian  religion, 
as  contained  in  the  New  Testament,  and  as  professed  by  the  ancient 
Friends,  and  adhere  to  the  religious  institutions  and  government 
of  the  society  of  Friends,  and  bear  the  same  cardinal  testimonies 
to  the  whole  world  as  are  held  most  important  and  characteristic 
in. the  said  society;  among  which  are,  a  testimony  against  war — 
a  hireling  ministry — against  taking  oaths — against  going  to 
law  with  brethren — and  a  concern  to  observe  the  golden  rule, 
"do  unto  all  men  as  we  would  they  should  do  unto  us."  And 
that  the  persons  under  whom  the  said  Joseph  Hendrickson  claims, 
are  a  minority  of  the  said  preparative  meeting,  and  as  individuals 
and  collectively,  have  voluntarily  withdrawn  themselves,  and 
seceded  from  said  meeting,  and  have  no  longer  any  communion 
therewith. 

The  defendant  admits  there  has  been  a  controversy  in  the  so- 
ciety of  Friends,  which  has  divided  them  :  the  minority  assum- 
ing the  name  of  the  Orthodox  party;  and  bestowing  upon  the 
majority  of  their  brethren,  from  whom  they  have  seceded,  the 
name  of  Hicksite,  a  name  never  assumed  or  acquiesced  in  by 
a  majority  of  the  said  society,  to  which  the  defendant  belongs, 
and  which  name  they  deny,  but  claim  that  of  Friends.  And 
tlrey  deny  being  the  followers  of  any  man,  or  set  of  men ;  sim- 
ply claiming  to  be  the  humble  disciples  and  followers  of  Christ, 
the  great  head  of  the  church  :  and  insist,  that  they  constitute  the 
great  body  of  the  society  of  Friends,  which  .name  they  still 
adhere  to ;  and  allege  that  they  still  hold,  and  are  endeavoring 
to  maintain  and  support,  the  doctrines,  fundamental  religious 
principles,  discipline  and  rules  of  government  of  the  ancient  re- 
ligious society  of  Friends  or  people  called  Quakers.  And  he  de- 
nies that  he  fhe  defendant,  and  his  associates,  have  seceded  from 
the  faith,  or  from  the  religious  institutions  and  government  of 
the  society  of  Friends,  and  the  ancient  yearly  meeting  in  Phila- 
delphia. And  the  defendant  insists,  that  by  the  law  and  consti- 
tution of  New- Jersey,  the  rights  of  property  are  sacred  and 
inviolate,  and  cannot  be  taken  from  an  individual  without  bis  or 
their  consent ;  and  more  especially  that  it  cannot  be  made  to  de- 
pend on  the  test  of  any  religious  creed)  framed  after  its 


JULY  TERM,  1832.  593 


Hendrickson  v.  Decow. 


vesting,  and  artfully  prepared  by  a  minority  to  answer  its  pur- 
poses. 

The  defendant  admits,  that  the  Chesterfield  preparative  meet- 
ing of  Friends  at  Cross  wicks,  of  which  he  is  a  member,  holds 
communication  with  the  yearly  meeting  of  Friends  established 
in  Philadelphia,  which  the  complainant  in  his  original  bill  impro- 
perly calls  the  Hicksite  party;  whhh  yearly  meeting,  the  de- 
fendant insists,  is  the  yearly  meeting  .of  the  ancient  and  true  so- 
ciety of  Friends.  The  defendant  also  insists,  that  the  question 
and  facts  introduced  into  the  original  bill,  in  relation  to  the  schism 
in  the  society  of  Friends,  and  discrepancies  among  them  in  re- 
gard to  matters  of  faith  and  discipline;  if  they  exist,  (which  he 
does  not  admit,)  and  also  in  respect  to  the  separation  of  the  year- 
ly meetings;  cannot  lawfully  or  equitably  affect  the  right  to  the 
fund  belonging  to  the  said  Chesterfield  preparative  meeting  of 
Friends  at  Crosswicks :  and  submits,  that  the  only  legitimate 
inquiry  before  the  court,  respects  t'tie  right  of  property  to  the 
bond  and  mortgage,  and  money  due  thereon,  mentioned  in  the  bill ; 
and  that  neither  this  nor  any  other  court,  have  a  right  to  institute 
an  inquest  into  the  consciences  or  faith  of  members  of  religious  socie- 
ties or  associations,  or  subject  them  to  the  ordeal  of  a  creed,  pre- 
pared by  those  claiming  adversely,  in  order  to  disfranchise  or  de- 
prive them  of  their  property  and  legal  right ;  and  protests  against 
the  existence  and  exercise  of  such  a  power.  ». 

And  the  defendant  says,  that  there  may  have  been  cases  in 
which  the  yearly  meeting  in  England  took  advisory  cognizance 
of  cases  of  appeal  from  the  yearly  meeting  in  Philadelphia;  but 
they  were  cases  of  consent,  and  have  long  since  ceased ;  and 
were  contrary  to  the  fundamental  principles  of  the  said  yearly 
meetings  in  this  country,  .which  were  independent  of  any  other 
meetings,  and  so  continue.  And  although  it  may  be  true,  that  the 
yearly  meeting  in  London  refuses  to  correspond  with  the  Philadel- 
phia yearly  meeting  to  which  the  defendant  belongs,  it  can  have 
no  effect  on  the  rights  of  the  members  of  the  said  yearly  meeting 
in  Philadelphia,  which  professes  to  be  the  true  and  ancient  yearly 
meeting  of  the  society  of  Friends. 

After  the  filing  of  these  answers,  witnesses  were  examined  on? 
both  sides,  depositions  taken,  and  exhibits  made,  which  together 

2p 


594  CASES  IN  CHANCERY. 

Hen  d  rick  son  v.  Decow. 

with  the  pleadings  at  large,  will  be  found  in  "  Foster's  Report"  of 
the  testimony  in  this  case,  in  two  vols.  8vo.,  published  in  Phila- 
delphia, 1831. 

The  chancellor  while  at  the  bar  having  been  of  counsel  in  the 
cause,  agreeably  to  the  practice  of  the  court,  called  to  his  assistance 
on  the  hearing,  EWING,  chief  justice,  and  DRAKE,  associate 
justice  of  the  supreme  court,  before  whom  the  cause  was  argued, 
by 

G.  Wood  and  J.  H.  Williamson,  for  Hendrickson,  the  complain- 
ant in  the  original  bill;  and 

G.  D.  Wall  and  £  L.  Southard,  for  Shotwell,  the  defendant  in 
the  original  bill,  and  complainant  in  the  bill  of  interpleader;  and 
Decow,  the  defendant. 

The  counsel,  in  their  arguments,  insisted  on,  and  endeavored  to 
sustain  and  prove  from  the  evidence  in -the  cause,  the  claims  and 
pretensions  of  the  respective  parties,  as  set  forth  in  the  pleadings. 

At  the  present  term,  the  following  opinions  were  delivered : — 

EVVING,  Chief  Justice.  Joseph  Hendrickson  exhibited  a  bill 
of  complaint  in  this  court,  stating  that  on  the  second  day  of 
April,  one  thousand  eight  hundred  and  twenty-one,  being  the 
treasurer  of  the  school  fund  of  the  preparative  meeting  of 
th(j  society  of  Friends  of  Chesterfield,  in  the  county  of  Bur- 
lington, he  loaned  the  sum  of  two  thousand  dollars,  part  of 
that  fund,  to  Thomas  L.  Shotwell,  who  thereupon  made  a 
bond  to  him,  by  the  name  and  description  of  Joseph  Hendrick- 
son, treasurer  of  the  school  fund  of.  Cross  wicks  meeting,  con- 
ditioned for  the  payment  of  the  said  sum,  with  interest,  to  him, 
treasurer  as  aforesaid,  or  his  successor,  on  the  second  day  of 
April,  then  next  ensuing,  and  also  a  mortgage  of  the  same  date, 
by  the  like  name  and  description,  on  certain  real  estate,  with  a 
condition  of  redemption,  on  payment  of  the  said  sum  of  money, 
with  interest,  to  the  said  Joseph  Hendrickson,  or  his  successor, 
treasurer  of  the  school  fund,  according  to  the  condition  of  the 
aforesaid  bond.  He  farther  states,  that  Thomas  L.  Shotwell  re- 


JULY  TERM,  1832.  595 

Hendrickson  v.  Decow. 

"         ^ 

fuses  to  pay  the  money  to  him,  being  treasurer  as  aforesaid,  on 
divers  unfounded  and  erroneous  pretensions;  he  seeks  relief  i a 
this  court  by  a  decree  for  the  foreclosure  of  the  mortgage,  or  for  a 
sale  of  the  mortgaged  premises,  and  an  appropriation  of  the  pro- 
ceeds to  the  payment  of  the  debt. 

Some  time  after  the  exhibition  of  this  bill,  Thomas  L.  Shotwell 
filed  here  a  bill  of  interpleader,  wherein  Joseph  Hendrickson  and 
Stacy  Decow  are  made  defendants  ;  in  which  he  admits  the  above 
mentioned  bond  and  mortgage,  and  the  source  from  which  eman- 
ated the  money  thereby  intended  to  be  secured,  the  school  fund  of 
the  Chesterfield  preparative  meeting.  He  admits,  also,  the  liability 
of  himself  and  the  real  estate  described  in  the  mortgage,  and  avows, 
his  readiness  and  willingness  to  pay  whatever  is  due.  But  he 
says  Stacy  Decow  has  warned  him  not  to  pay  to  Joseph  Hen- 
drickson, alleging  that  Hendricksou  is  no  longer  treasurer  of  the 
fund,  and  has  therefore  no  right  to  receive ;  and  that  he  is  the 
treasurer  and  successor  of  Hendrickson,  and  as  such  claims  the 
money  mentioned  in  the  bond  and  mortgage.  Seeking,  then,  the 
protection  of  this  court,  and  offering,  on  being  indemnified  by.  its 
power,  to  pay  to  whomsoever  the  right  belongs,  he  prays  that 
Joseph  Hendrickson  and  Stacy  Decow,  may,  according  to  the  course 
and  practice  of  this  court,  interplead,  and  adjust  between  themselves 
their  respective  claims. 

Joseph  Hendrickson  answered  this  bill ;  and  insists,  as  in  his 
original  bill,  that  he  is,  as  he  was  when  the  bond  and  mort- 
gage were  executed,  the  treasurer  of  the  school  fund  of  the  Ches- 
terfield preparative  meeting  of  Friends  at  Crosswicks,  and  is  entitled 
to  the  bond  and  mortgage,  and  to  receive  the  money  due  thereon. 

Stacy  Decow  has  also  answered  the  bill  of  interpleader.  He 
admits  the  loan  of  the  money,  part  of  the  school  fund,  to  Shotwell, 
and  the  due  execution  and  delivery,  and  the  validity  of  the  bond 
and  mortgage,  and  that  when  they  were  made,  Joseph  Hen- 
drickson was  the  treasurer  of  the  school  fund,  duly  appointed 
by  the  Chesterfield  preparative  meeting  at  Crosswicks  ;  in  whom, 
as  all  the  parties  in  this  cause  admit,  was  vested  the  right  of  ap- 
pointing the  treasurer  of  the  fund.  But  he  says,  that  before  the 
filing  of  the  original  bill  by  Joseph  Hendrickson,  and  "  on  the 


596  CASES  IN  CHANCERY. 

Hendrickaon  v.  Decovr. 

— » 

thirty-first  day  of  the  first  month,  1828,  at  a  lawful  meeting  of  the 
said  Chesterfield  preparative  meeting  of  Friends,  held  at  the  usual 
time  and  place  of  meeting  at  Crosswicks,  he  was  appointed,  in  due 
and  lawful  manner,  treasurer  of  the  said  school  fund,  to  succeed 
the  said  Joseph  Hendrickson  ;  and  as  such  successor,  became  enti- 
tled to  all  the  books,  obligations  and  other  papers,  which  he  had 
in  his  possession,  and  also  to  the  funds  then  in  his  hands,  and  more 
particularly  to  the  bond  and  mortgage  in  the  original  bill  and  bill 
of  interpleader  mentioned,  and  the  money  due  thereon ;  and  the 
Baid  Joseph  Hendrickson  ceased  to  have  any  right,  title  or  claim 
thereto."  He  further  insists,  "  that  he  always  has  continued  since 
Jiis  appointment,  and  is  the  lawful  treasurer  of  the  said  school  fund, 
and  as  the  successor  of  the  said  Joseph  Hendrickson  is  lawfully  en- 
titled to  have  and  receive  all  such  bonds,  obligations  and  mortgages, 
and  the  money  due  thereon,  as  had  been  taken  for  the  loan  of  any 
part  of  the  said  fund  in  his  name  as  treasurer  of  the  said  school 
fund,  or  payable  to  him,  as  such  treasurer,  or  his  successor." 

This  brief  view  of  the  pleadings  is  -here  presented,  in  order 
distinctly  to  exhibit,  in  a  clear  and  naked  manner,  divested  of 
auxiliary  and  explanatory  matters,  and  especially  of  forensic  forms, 
the  grounds  of  the  respective  claims  of  the  interpleading  parties. 
And  hence,  we  may  discern,  the  great  outlines  of  the  enquiries 
which  an  investigation  of  this  cause  will  lead  us  to  make.  For 
according  to  these  pretensions,  and  to  these  alone,  thus  set  forth  in 
the  pleadings,  as  they  are  respectively  supported  or  subdued  by  the 
proofs  the  decree  of  this  tribunal  must  be  made,  whatever  other 
points  favorable  or  unfavorable  to  either  party  may  become  mani- 
fest by  the  evidence. 

Joseph  Hendrickson  claims  the  money,  because  originally  made 
payable  to  him,  and  because  he  is,  as  he  then  was,  the  treasurer  of 
the  fund. 

Stacy  Decow  claims  the  money,  because  payable  by  the  terms 
of  the  bond  to  the  successor  of  Joseph  Hendrickson  in  that  office, 
and  because  he  became,  and  is  such  successor,  and  the  present 
treasurer. 

A  slight  sketch  of  the  history  of  the  establishment  and  organi- 
zation of  the  Crosswicks  school,  and  of  the  fund,  may  be  inter- 


JULY  TERM,  1832.  597 

Hendrickson  v.  Decow. 

esting,  and  will,  perhaps,  shed  light  on  some  step  in  the  progress 
of  our  investigations. 

The  education  of  youth  and  the  establishment  of  schools,  at- 
tracted the  care  and  attention,  and  brought  out  the  exertions,  of 
the  yearly  meeting  of  Philadelphia,  at  an  early  day.  Most  earnest 
and  pressing  recommendations  of  these  interesting  duties,  to  the 
consideration  and  notice  of  the  society,  were  repeatedly  made  ;  and 
to  render  these  more  effectual,  committees  were  appointed  to  at- 
tend and  assist  the  quarterly  meetings.  In  the  year  1778,  the 
yearly  meeting  adopted  the  report  of  a  committee,'"  that  it  be  re- 
commended to  the  quarterly,  and  from  them  to  the  monthly  and 
preparative  meetings,  that  the  former  advice,  for  the  collecting  a- 
fund  for  the  establishment  and  support  of  schools,  under  the  care 
of  a  standing  committee,  appointed  by  the  several  monthly  or  par- 
ticular meetings,  should  generally  take  place,  and  that  it  be  recom- 
mended by  the  yearly  meeting,  to  Friends  of  each  quarter,  to  send 
up  the  next  year,  an  account  of  what  they  have  done  herein."  And 
the  report  suggests  the  propriety  of  "  a  subscription  towards  a 
fund,  the  increase  of  which  might  be  employed  in  paying  the  mas- 
ter's salary,  and  promoting  the  education  of  the  poorer  Friends' 
children :"  2  vol.  Evid.  387. 

The  quarterly  meeting  of  Burlington  appear  to  have  faithfully 
striven  to  promote  the  wise  views  and  benevolent  purposes  of  the 
yearly  meeting.  In  1777,  and  1778,  appropriate  measures  were 
adopted:  2  vol.  Evid.  436.  In  1783,  the  subject  was  "afresh 
recommended  to  the  due  attention  of  their  monthly  and  preparative 
meetings,  and  to  produce  renewed  exertion,"  a  committee  previously 
appointed,  was  discharged,  and  a  new  one  raised  ;  and  "it  is  de- 
sired," says  the  minute,  "  that  accounts  of  our  progress  herein, 
may  be  brought  forward  timely,  to  go  from  this  to  the  ensuing 
yearly  meeting  :"  2  vol.  Evid.  436. 

Within  the  bounds  of  the  Chesterfield  monthly  meeting,  al- 
though a  committee  had  been  for  some  time  charged  with  the 
subject,  there  appears  no  practical  result,  until  after  the  meeting 
in  April,  1788,  when  a  new  committee  was  appointed,  "  to  en- 
deavor to  promote  the  establishing  of  schools,  agreeably  to  the 
directions  of  the  yearly  meeting:"  2  vol.  Evid.  349.  In  August, 
1789,  the  committee  reported,  that  they  had  agreed  on  a  place 


598  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

to  build  a  school-house,  and  had  obtained  subscriptions  to  a  con- 
siderable amount,  and  had  agreed  to  lay  the  same  before  the 
monthly  meeting  for  their  approbation."  The  minute  of  the 
meeting  approves,  "  and  empowers  them  to  proceed  :"  2  vol.  Evid. 
349.  To  the  monthly  meeting  of  August,  1791,  "  the  commit- 
tee appointed  for  the  establishment  of  schools,  agreeably  to  the 
direction  of  the  yearly  meeting,  reported,  there  is  a  house  at 
Chesterfield^  so  far  finished,  that  a  school  might  be  kept  in  it, 
but  it  is  not  yet  occupied  for  that  purpose  ;  neither  is  there  any 
such  school  within  this  monthly  meeting."  The  clerk  was  directed 
"  to  send  up"  this  report  "  to  the  ensuing  quarterly  meeting:"  2 
vol.  Evid.  349.  No  other  action  on  it  took  place  by  the  monthly 
meeting,  until  December,  1791,  when  they  recommended  to  the 
preparative  meeting  in  Chesterfield,  "and  they  are  hereby  au- 
thorized." says  the  entry  on  the  minutes,  "  to  open  a  school  in  the 
said  house,  and  appoint  a  suitable  number  of  Friends,  as  trustees, 
to  take  the  care  and  oversight  thereof,  and  to  make  rules  and  regu- 
lations for  the  government  and  promotion  of  the  institution  ;  which 
rules  and  regulations  shall  always  be  inspected  by  the  monthly 
meeting  committee,  for  their  approbation  or  disallowance;  and  said 
meeting  are  likewise  authorized  td  appoint  a  treasurer,  to  receive 
subscriptions  and  donations  for  accumulating  a  fund  :"  2  vol.  Evid. 
349,  exhib.  51. 

The  fruit  of  these  discreet  and  vigorous  measures  soon  appeared. 
The  house  built,  provision  made  for  trustees  and  a  treasurer, 
and  the  accumulation  of  a  fund  thus  earnestly  resolved,  a 
subscription  was  opened,  and  numerous  and  generous  donations 
were  obtained.  The  original  instrument  of  writing  has  been  pro- 
duced before  us.  It  is  an  interesting  record  of  liberality.  The 
subscribers  describe  themselves  to  be  "  members  of  the  prepara- 
tive meeting  of  the  people  called  Quakers,  at  Crosswicks."  They 
engage  to  make  the  payments  to  the  "  treasurer  of  the  school  at 
Crosswicks,  begun  and  set  up  under  the  care  of  the  preparative 
meeting."  And  the  purpose  is  thus  declared : — "  The  principal 
whereof,  so  subscribed,  is  to  be  and  remain  a  permanent  fund, 
under  the  direction  of  the  trustees  of  the  said  school,  now  or 
hereafter  to  be  chosen  by  the  said  preparative  meeting,  and  by 
them  laid  out  or  lent  on  interest,  iu  such  manner  as  'hev  jhall 


JULY  TERM,  1832.  599 


Hendrickson  v.  Decow. 


judge  will  best  secure  an  interest  or  annuity,  which  interest  or 
annuity  is  to  be  applied  to  the  education  of  such  children  as  now 
do,  or  hereafter  shall,  belong  to  the  same  preparative  meeting, 
whose  parents  are,  or  shall  not  be,  of  ^ability  to  pay  for  their  edu- 
cation :"  Exliib.  1,  2  vol.  Evid.  411. 

This  subscription  was  the  basis  of  the  school  fund.  Accessions 
to  it  were  afterwards  made,  by  other  individuals  of  the  society  ; 
and  the  quarterly  meeting  of  Burlington,  who  held  and  owned  a 
stock,  composed  of  donations,  bequests,  and  the  proceeds  of  the 
sale  of  some  meeting-houses,  resolved,  in  1792,  to  divide  a  portion 
of  it  among  the  monthly  meetings,  "  for  the  promotion  of  schools, 
answerable  to  the  recommendation  of  the  yearly  meeting,  by  es- 
tablishing permanent  funds  within  such  of  the  meetings  where 
none  have  been  heretofore,  or  in  addition  to  such  as  are  already 
established  :"  2  vol.  Evld.  437,  exhib.  32.  The  share  of  Ches- 
terfield monthly  meeting  having  been  received,  was  subdivided, 
and  a  part  of  it  paid  over  to  the  treasurer  of  the  school  fund  of 
the  preparative  meeting  of  Chesterfield,  "  to  be  applied  to  the  use 
directed  by  the  minute  of  the  quarterly  meeting:"  2  vol.  Eoid. 
347,  exhib.  51  In  1802,  a  farther  sum,  arising  from  the  sale  of 
"an  old  meeting-house,"  was  paid  to  the  treasurer,  by  the  monthly 
meeting,  to  be  appropriated  in  the  same  manner:  Exhib.  02,2 
vol.  Evid.  347. 

In  this  way,  and  by  discreet  and  prudent  management,  a  fund 
was  accumulated,  a  school-house  erected,  and,  as  we  learn  from 
one  of  the  witnesses,  "  Friends,  for  many  years,  generally  had  a 
school  kept  therein,  under  their  superintendence,  and  frequently 
appropriated  a  part  of  the  proceeds  towards  paying  the  teacher's 
salary,  and  for  the  education  of  children  contemplated  in  the 
original  establishment  of  the  fund  :"  Samuel  Craft,  2  vol.  Evid. 
350. 

A  part  of  this  fund,  as  we  have  already  seen,  was  loaned  to 
Thomas  L.  Shotwell,  and  is  the  subject  of  the  present  contro- 
versy. 

For  the  direction  of  the  school,  and  for  the  care,  preservation, 
and  management  of  the  fund,  provision,  as  has  been  shown,  was 
made,  as  well  by  the  terras  of  the  subscription,  as  by  the  resolu- 
tion of  the  monthly  meeting.  The  officers,  were  accordingly  ap- 


600  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

pointed  by  the  preparative  meeting,  from  time  to  time,  as  occa- 
sion required.  The  trustees  were  usually  chosen  in  the  first 
month  of  every  year :  2  vol.  Evid.  287.  No  fixed  term  of  office 
appears  to  have  been  assigned  to  the  treasurer ;  so  that  the  in^ 
cumbent  remained  until  removed  by  death,  resignation,  or  the  will 
of  the  appointing  body.  The  person  who  held  that  station  when 
the  subscription  was  made,  continued  there  until  1812,  when  an- 
other Friend  succeeded  him,  and  remained  in  office  until  Joseph 
Hendrickson  was  duly  appointed,  in  1816. 

The  facts  thus  far  presented  are  not,  and  from  the  pleadings 
and  evidence  in  the  cause,  cannot  be,  the  subject  of  dispute. 
There  are  some  positions,  deducible  from  them,  which  are  equally 
clear  and  incontrovertible. 

First.  The  money  mentioned  in  the-  bond  being  payable  to 
Joseph  Hendrickson,  as  treasurer,  he  has  an  indisputable  right  to 
claim  and  receive  it,  if  he  remains  in  that  office. 

Second.  Inasmuch  as  he  was  duly  appointed,  which  is  unequivo- 
cally admitted  by  the  pleadings,  and  inasmuch  as  the  term  of  office 
of  treasurer  does  not  cease  by  efflux  of  time  or  by  previous  limita- 
tion, the  legal  presumption  is  that  he  remains  in  office  until  compe- 
tent evidence  of  his  due  removal  is  given. 

Third.  Such  being  the  case,  Joseph  Hendrickson  is  not  re 
quired  to  produce  farther  evidence  of  his  right  to  receive  the  mo- 
ney, or  of  his  continuance  in  office,  or  that  he  has  been  retained 
there  by  the  competent  authority  ;  but  whoever  denies  that  right, 
or  seeks  to  sustain  any  claim  on  the  ground  that  he  has  ceased  to 
be  treasurer,  ought  to  establish  the  ground  by  lawful  and  sufficient 
proof. 

FourtJi.  Inasmuch  as  Stacy  Decow  alleges  that  Joseph  Hen- 
drickson was  removed  from  office,  and  that  he  was  appointed  his 
successor  and  treasurer  of  the  school  fund,  (and  upon  this  remo- 
val and  appointment,  he  rests,  in  his  answer,  for  the  entire  sup- 
port of  his  claim,)  it  is  incumbent  on  him  to  establish  the  fact  and 
legality  of  this  removal  and  appointment. 

The  power  of  appointment  and  removal,  as  the  litigating  par- 
ties unqualifiedly  admit,  is  vested  in  the  Chesterfield  preparative 
meeting  at  Crosswicks,  meant  and  mentioned  in  the  original  sub- 
scription paper  or  agreement  of  the  donors ;  which  is  distinguish- 


JULY  TERM,  1832.  601 


Hendrickson  v.  Decow. 


ed  as  Exhibit  No.  1,  and  which  I  have  already  referred  to  as  the 
basis  of  the  school  fund.  The  parties  also  admit,  or  rather,  insist, 
in  their  pleadings,  by  their  evidence,  and  in  the  arguments  of  their 
counsel,  that  the  preparative  meeting  is  one  and  undivided;  or  in 
other  words,  that  there. is  and  can  be  but  one  body  entitled  to  be 
called  the  Chesterfield  preparative  meeting,  to  exercise  its  power 
and  authority,  and  especially  the  prerogative  of  removal  and  ap- 
pointment. It  farther  appears  from  the  evidence,  that  a  body 
calling  themselves,  and  claiming  to  be,  the  Chesterfield  preparative 
meeting  of  Friends  at  Crosswicks,  did,  on  the  31st  of  January, 
1828,  adopt  a  resolution  and  enter  it  on  their  minutes,  to  the  fol- 
lowing effect:  "This  meeting  being  now  informed  by  the  trustees 
who  have  the  immediate  care  and  trust  of  the  school  fund  belong- 
ing to  this  meeting,  that  the  person  who  was  sometime  since  ap- 
pointed treasurer  thereof,  refuses  to  settle  the  account  of  the  said 
fund  with  them,  this  meeting,  therefore,  now  think  it  best  to  ap- 
point a  Friend  to  succeed  him  as  treasurer  of  the  said  fund,  and 
Stacy  Decow  being  now  named  in  that  service  and  united  with  by 
this  meeting,  is  appointed  accordingly." 

We  are  now  brought  to  the  issue  between  these  parties,  and  are 
enabled  to  propound  for  solution,  the  question  on  which  their 
respective  claims  depend  :  was  this  body  the  Chesterfield  prepara- 
tive meeting  of  Friends  at  Crosswicks,  meant  and  mentioned  in 
the  establishment  of  the  school  fund  ?  If  Jt  was,  Stacy  Decow  is 
the  successor  and  treasurer.  If  not,  Joseph  Hendrickson  remains 
in  office,  and  is  entitled  to  the  money. 

The  meetings  in  the  society  of  Friends  are-«f  two  kinds;  for 
worship,  and  for  discipline,  as  they  are  sometimes  called,  or  in 
other  words,  for  business.  This  distinction  is  sufficiently  correct 
and  precise  for  our  present  purposes,  and  it  is  not  necessary  to 
pause  to  consider  of  the  suggestion,  I  have  read  somewhere  in  the 
testimony  or  documents  in  the  cause,  or  perhaps,  heard  from  the 
counsel  in  argument,  that  every  meeting  for  discipline,  is  in  truth 
a  meeting  for  worship,  since. he  who  cordially  and  faithfully  per- 
forms any  ecclesiastical  duty,  does  thereby  pay  an  act  of  adoration 
to  the  Almighty. 

The  meetings  for  business  are  four  in  number,  marked  and  dis- 


602  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

tinguished  by  peculiar  and  characteristic  differences;  preparative, 
monthly,  quarterly  and  yearly.  These  are  connected  together, 
and  rise  in  gradation  and  rank  in  the  order  of  their  enumeration. 
Each  yearly  meeting  comprehends  several  quarterly  meetings; 
each  quarterly  meeting  several  monthly  meetings ;  and  every 
monthly  meeting  embraces  several  of  the  lowest  order,  preparative 
meetings.  The  preparative  meeting  is  connected  with,  and  sub- 
ordinate to,  some  monthly  meeting ;  the  monthly  meeting,  to 
some  quarterly  meeting;  the  quarterly  meeting,  to  its  appropriate 
yearly  meeting.  The  connection  and  subordination  are  con- 
stitutional and  indispensable:  insomuch,  that  if  any  quarterly 
meeting  withdraws  itself  from  its  proper  yearly  meeting,  without 
being  in  due  and  regular  manner  united  to  some  other  yearly 
meeting,  it  ceases  to  be  a  quarterly  meeting  of  the  society  of 
Friends.  In  like  manner  of  the  other  meetings,  down  to  the 
lowest.  So  that  if  a  preparative  meeting  withdraws  from  its 
peculiar  monthly  meeting,  and  does  not  unite  with  another  of 
the  same  common  head,  or  some  other-  legal  and  constitutional 
head,  or  in  other  words,  some  acknowledged  .meeting,  it  does, 
from  the  moment,  and  by  the  very  act  of  withdrawal,  cease  to  be 
a  preparative  meeting  of  the  society  of  Friends. 

The  truth  of  "the  position  I  have  thus  laid  down,  respecting  con- 
nection and  subordination,  will  not,  I  presume,  in  the  manner  and 
to  the  full  extent  which  I  have  stated,  meet  with  any  denial  or 
doubt.  Yet,  as  it  is  of  considerable  importance  in  the  present 
cause,  I  shall  show  that  it  is  established  ;  first,  by  the  constitution 
or  discipline  of  the  society  ;  second,  by  their  usages,  or  as  they 
might  be  called,  in  forensic  language,  cases  in  point,  or  precedents; 
and  lastly,  by  the  opinion  of  the  society  at  large,  so  fur  as  may  be 
learned  from  the  views  of  well-informed  members. 

In  the  first  place,  then,  as  proposed,  let  us  look  into  the  book 
of  discipline.  We  find  there  the  following  clear  and  explicit 
language.  ''For  the  more  regular  and  effectual  support  of  this 
order  of  the  society,  besides  the  usual  meetings  for  the  purposes 
of  divine  worship,  others  are  instituted,  subordinate  to  each 
other;  such  as,  first,  preparative  meetings,  which  commonly  con- 
sist of  the  members  of  a  meeting  for  worship ;  second,  monthly 


JULY  TERM,  1832.  603 

Hendrickson  v.  Decow. 

meetings,  each  of  which  commonly  consists  of  several  prepara- 
tive meetings;  third,  quarterly  meetings,  each  of  which  consists 
of  several  of  the  monthly  meetings;  and  fourth,  the  yearly  meet- 
ing, which  comprises  the  whole."  "These  meetings  have  all 
distinct  allotments  of  service."  The  connection  of  the  several 
meetings,  and  their  subordination,  in  the  manner  I  have  sug- 
gested, are  here  most  plainly  and  unequivocally  shown  and  es- 
tablished. The  place  which  this  clause  occupies  in  the  discipline 
or  constitution,  (and  the  latter  name  seems  more  familiar,  or  at 
least  to  convey  to  professional  minds,  more  distinct  ideas,  serves 
to  illustrate  its  importance.  It  is  mentioned  at  the  commence- 
ment; as  if,  one  of  the  first  truths  to  be  taught  and  known;  as 
if,  the  very  foundation  of  the  structure  of  disci pline  raised  upon 
it.  The  article  on  appeals  speaks  the  same  idea.  A  person  ag- 
grieved may  appeal  from  the  monthly  meeting  to  the  quarterly 
meeting,  and  the  monthly  meeting  are,  in  such  case,  to  appoint 
a  committee  to  show  the  reasons  of  their  judgment  and  submit 
it  there,  where  the  judgment  is  to  be  confirmed  or  reversed. 
From  the  quarterly  meeting,  an  appeal,  may  be  taken  to  the 
yearly  meeting,  where  a  committee  are  to  attend  with  copies  of 
the  records  of  the  monthly  and  quarterly  meetings,  and  where 
the  matter  is  to  be  finally  determined;  and  a  copy  of  the  deter- 
mination is  to  be  sent  to  the  meeting  from  which  the  appeal 
came.  In  the  article  on  meetings  for  discipline,  are  contain- 
ed the  following  clauses: — "The  connection  and  subordination 
of  our  meetings  for  discipline  are  thus;  preparative  meetings  are 
accountable  to  the  monthly  ;  monthly  to  the  quarterly  ;  and  the 
quarterly  to  the  yearly  meeting.  So  that  if  the  yearly  meeting 
be  at  anytime  dissatisfied  with  the  proceedings  of  any  inferior 
meeting,  or  a  quarterly  meeting  with  the  proceedings  of  either 
of  its  monthly  meetings,  or  a  monthly  meeting  with  the  proceed- 
ings of  either  of  its  preparative  meetings,  such  meeting  or  meet- 
ings ought,  with  readiness  and  meekness,  to  render  an  account 
thereof  when  required."  "It  is  agreed,  that  no  quarterly  meet- 
ing be  set  up  or  laid  down  without  the* consent  of  the  yearly 
meeting;  no  monthly  meeting  without  the  consent  of  the  quar- 
terly meeting;  nor  any  preparative  or  other  meeting  for  business 
or  worship,  till  application  to  the  monthly  meeting  is  first  made, 


604  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

and  when  there  approved,  the  consent  of  the  quarterly  meeting  be 
also  obtained.." 

Another  clause  requires  monthly  meetings  to  appoint  represen- 
tatives to  attend  the  quarterly  meetings;  and  that  at  least  four  of 
each  sex  be  appointed  in  every  quarterly  meeting  to  attend  the 
yearly  meeting.  Another  clause  is  in  these  words:  "  The  use  and 
design  of  preparative  meetings  is,  in  general,  to  digest  and  prepare 
business,  as  occasion  'may  require,  which  may  be  proper  to  be  laid 
before  the  monthly  meeting." 

The  connection  and  subordination  of  these  meetings,  and  their 
relative  rank  or  station  in  ecclesiastical  order,  being  thus  plainly 
and  conclusively  shown  and  established  by  the  highest  authority, 
the  revered  and  respected  rule  of  government  for  this  whole  re- 
ligious community,  we  may  naturally  expect,  what  accordingly 
we  find,  numerous  instances  of  the  exercise  of  authority,  of  the 
subsistence  of  this  connection,  and  of  the  fruits  of  this  subordina- 
tion, in  the  conduct  toward  each  other,  of  the  respective  meetings. 
From  the  examples  which  are  abundantly  furnished  us  in  the  evi- 
dence, I  shall  select  a  .very  few,  and  I  prefer,  for  obvious  rea- 
sons, to  take  them  from  the  minutes  of  Burlington  and  Ches- 
terfield meetings.  The  constant  intercourse  by  representatives, 
and  the  frequent  appointment  and  attendance  of  committees 
from  the  yearly  to  the  quarterly,  and  from  the  latter  to  inferior 
meetings,  need  only  to  be  mentioned  in  general  terms,  to  be 
brought  fresh  to  the  remembrance  of  all  who  know  any  thing  of 
the  ecclesiastical  history  of  their  own  times  or  of  their  predeces- 
sors, or  who  have  perused  the  testimony  and  documents  before 
us.  In  second  month,  1778,  the  quarterly  meeting  of  Burling- 
ton directed  the  times  of  holding  certain  preparative  meetings,  so 
as  to  be  convenient  to  a  committee  who  were  to  visit  them.  In 
second  month,  1820,  the  quarterly  meeting  refused  to  allow  the 
holding  of  an  afternoon  meeting  for  worship,  in  Trenton,  and 
directed  their  clerk  to  inform  the  monthly  meeting  of  Chesterfield 
of  their  determination.  In  1821,  the  Trenton  preparative  meet- 
ing requested  of  the  monthly  meeting,  permission  to  continue 
their  afternoon  sittings,  and  leave  for  one  year  was  given.  In 
fifth  month,  1825,  the  quarterly  meeting  declared,  that  certain 
persons  admitted  into  membership  in  Chesterfield  monthly  meet- 


JULY  TERM,  1832.  605 


Hendrickson  v.  Decow. 


ing,  were  not  members,  and  the  clerk  was  directed  to  communi- 
cate this  conclusion  to  that  meeting  and  to  the  individuals.  In 
fifth  month,  1825,  the  quarterly  meeting  annulled  the  proceed- 
ings of  the  Chesterfield  monthly  meeting  respecting  the  reception 
of  a  person  as  one  of  its  members.  In  eleventh  month,  1825, 
Trenton  afternoon  meetings  were  discontinued  by  order  of  the 
monthly  meeting.  In  fourth  month,  1826,  the  Trenton  prepa- 
rative meeting  requested  permission  to  hold  an  afternoon  sitting, 
which,  at  the  next  monthly  meeting,  was  refused.  In  1826, 
Thomas  L.  Shot  well,  one  of  the  parties  in  this  cause,  was  dis- 
owned by  the  monthly  meeting  of  Chesterfield.  He  appealed  to 
the  quarterly  meeting  of  Burlington,  where  the  disown  men  t  was 
confirmed.  In  the  Chesterfield  preparative  meeting  of  sixth 
month,  1827,  the  extracts  from  the  yearly  meeting  of  fourth 
month,  1827,  were  produced  and  read.  Contributions  of  mo- 
ney are  statedly  made,  according  to  a  prescribed  ratio,  and  for- 
warded by  the  inferior  to  the  superior  meetings,  and  thus  a  stock, 
as  it  is  called,  is  maintained  in  the  yearly  meeting.  Occasional, 
or  ex  re  nata,  contributions  have  also,  at  times,  been  made. 
The  yearly  meeting  of  1827,  recommended  the  raising  of  a  large 
sum,  three  thousand  dollars,,  for  a  work  of  benevolence,  and  the 
preparative  and  monthly  meetings  of  Chesterfield  pursued  the  re- 
commendation, and  bore  their  usual  and  proportional  part  in  carry- 
ing it  into  effect. 

A  brief  reference  will  show  that  individuals,  as  well  as  meet- 
ings and  the  book  of  discipline,  recognize  and  maintain  the  con- 
nection and  subordination  of  the  several  bodies  in  the  society.  In 
the  pleadings  of  the  parties  in  this  cause,  the  position  is  stated 
by  each  of  them,  especially  by  the  interpleading  parties,  Hen- 
drickson and  Decow.  To  these  documents,  as  far  as  the  cause 
is  concerned,  it  might  suffice  to  refer,  since  whatever  is  admitted 
by  both  parties,  is,  as  respects  them,  incontrovertible.  But  a 
recurrence  to  the  following  parts  of  the  testimony,  will  show 
that  what  is  said  on  this  topic  in  the  pleadings,  is  the  very  lan- 
guage and  sentiment  of  this  whole  religious  community.  For 
the  sake  of  brevity,  I  will  content  myself  with  mentioning  the 
names  of  the  witnesses,  and  the  pages  of  the  printed  volumes, 
whither  any  one  will  resort  who  is  disposed  to  examine  them  at 


606  CASES  IN  CHANCERY. 

Hetidrickson  v.  Decow. 

large.  Samuel  Bettle,  1  vol.  62,  63,  83 ;  Samuel  Pardons, 
1  vol.  170;  Thomas  Evans,  1  vol.  271,  272,  311;  John  Gum- 
mere,  1  vol.  316;  Samuel  Craft,  1  vol.  334;  Abraham  Low- 
er, 1  vol.  379,  405;  HaUiday  Jackson,  2  vol.  144,  178,  191; 
Otarlea  Stokes,  2  vol.  218,  229;  Josiah  Gaskill,  2  vol.  297; 
James  Brown,  2  vol.  321,  322. 

From  this  view,  it  seems  to  me,  established  beyond  the  reach 
of  doubt,  that  according  to  the  constitution  of  the  society  of 
Friends,  a  preparative  meeting  must  be  subordinate  to  and  con- 
nected with  a  monthly  meeting,  which  is  connected  with  and 
subordinate  to  a  quarterly  meeting,  which  again  is  connected 
with  and  subordinate  to  a  yearly  meeting.  There  can  be  no 
preparative  meeting  which  is  not  so  connected  and  subordinate. 
To  descend  from  generals  to  particulars,  every  preparative  meet- 
ing within  the  bounds  of  the  yearly  meeting  of  Philadelphia,  is, 
and  must  be,  connected  with,  and  subordinate  to,  a  monthly 
meeting  connected  with,  and  subordinate  to,  a  quarterly  meeting, 
which  is  connected  with  and  subordinate  to,  that  yearly  meeting. 
There  can  be  no  preparative  meeting  within  those  bounds,  which 
is  not  so  connected  and  subordinate.  From  this  constitutional 
principle,  the  following  rule  results  as  a  corollary.  Every  prepa- 
rative meeting  within  those  bounds,  which  is,  through  and  by  its 
appropriate  links,  connected  with,  and  subordinate  to,  the  yearly 
meeting  of  Philadelphia,  is  a  "  preparative  meeting  of  the  peo- 
ple called  Quakers;"  and  any  preparative  meeting  or  assemblage 
of  persons  calling  themselves  a  preparative  meeting,  not  thus 
connected  and  subordinate,  is  not  a  preparative  meeting  of  that 
people. 

In  laying  down  these  propositions,  I  expressly  avoid,  and  do 
not  propose  to  examine  or  decide,  unless  in  the  sequel  I  find  it 
necessary,  a  question  much  agitated  and  discussed,  whether  a 
preparative  meeting  can  be  laid  down  without  its  consent. 
There  is,  however,  another  proposition  connected  therewith, 
which,  so  as  to  make  use  of  it  hereafter,  if  necessary,  I  shall 
state  barely,  without  a  protracted  or  tedious  inquiry,  because  I 
believe  no  one  will  gainsay  it.  A  preparative  meeting,  cannot 
be  made  or  constituted  within  the  bounds  of  its  superior,  the 
quarterly;  or  to  speak  more  definitely,  a  new  preparative  meeting 


JULY  TERM,  1832.  607 


Hendrickson  v.  Decow. 


cannot  be  set  up,  within  the  bounds  of  the  Burlington  quarterly 
meeting,  without  the  sanction  of  the  latter  body  ;  that  is  to  say, 
of  the  Burlington  quarterly  meeting,  which  is  connected  with, 
and  subordinate  to,  the  yearly  meeting  of  Philadelphia.  I  avoid, 
for  the  present  at  least,  another  topic,  or  rather,  I  mean,  in  the 
propositions  above  stated,  to  express  no  opinion  upon  it,  whether 
a  superior  meeting  may  control  an  inferior,  in  matters  of  property, 
or  of  a  pecuniary  nature ;  and  also,  another  topic  somewhat  dis- 
cussed in  the  examination  of  the  witnesses,  if  not  by  the  counsel 
on  the  argument,  whether  a  superior  meeting  can,  without  ap- 
peal, reverse  the  decision  of  an  inferior,  or  take  cognizance  directly 
and  originally,  of  matters  not  coming,  by  way  of  appeal,  through 
the  subordinate  meetings. 

The  general  doctrine  of  the  connection  and  subordination  of 
meetings  for  business,  I  shall  now  proceed  to  show,  has  been  ex- 
pressly applied  to  the  preparative  meeiing  of  Chesterfield.  And 
as  this  topic  bears  much  upon  the  result  of  our  inquiries,  I  must 
enter  into  some  detail. 

Joseph  Hendrickson,  in  his  answer,  says,  "  There  have  been 
for  many  years  past,  a  monthly  and  preparative  meeting  of 
the  said  society  of  Friends  of  Chesterfield  ...  at  Crosswicks 
that  the  said  meeting  at  Crosswicks,  is  under  the  control  and  ju- 
risdiction of  the  said  yearly  meeting  of  Philadelphia :  .  .  .  that 
some  of  the  members  of  a  number  of  quarterly  and  raopthly 
meetings,  which  were  under  the  control  and  jurisdiction  of  the 
regular  and  constitutional  yearly  meeting,  at  Philadelphia,  afore- 
said .  .  .  met  at  Philadelphia,  on  the  third  Monday  in  October, 
1827,  and  then  and  there  irregularly,  and  contrary  to  discipline, 
.  .  .  formed  a  new  yearly  meeting  of  their  own,  which  was  ad- 
journed by  them  to  the  second  Monday  of  April,  1828  ;  just  one 
week  before  the  time  of  the  sitting  of  the  regular  constitutional 
yearly  meeting:  .  .  .  that  these  religious  dissensions  and  divisions 
found  their  way  into  the  meeting  of  the  society  of  Friends  at 
Crosswicks,  aforesaid  :  .  .  .  that  the  Hicksite  party,  and  Orthodox 
party  .  .  .  there,  hold  separate  and  distinct  meetings,  for  business 
and  worship,  the  former  being  under  the  jurisdiction  and  control 
of  the  new  yearly  meeting  of  Philadelphia,  aforesaid,  to  which 
they  have  attached  themselves,  having  renounced  the  jurisdic- 


608  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

tion  and  control  of  the  ancient,  yearly  meeting  aforesaid  ;  the 
latter,  being  under  the  jurisdiction  and  control  of  the  ancient 
yearly  meeting."  Stacy  Decow,  in  his  answer,  says,  "  that  for 
many  years,  there  has  been  established,  at  Crosswicks,  ...  a  pre- 
parative meeting  of  the  religious  society  of  Friends,  or  people 
called  Quakers,  called  and  known  by  the  name  of  the  Chester- 
field preparative'  meeting  of  Friends,  held  at  Crosswicks,  There 
is  also  a  monthly  meeting  of  Friends  established  at  the  same 
place.  That  this  defendant  is  now,  and  has  been  for  twenty 
years  and  upwards,  a  member  of  the  said  several  meetings :  .  .  . 
that  the  said  Chesterfield  preparative  me'eting  of  Friends  at- 
Crosswicks,  to  which  he  belongs,  is  the  same  preparative  meet- 
ing of  Friends  at  Crosswicks,  under  whose  care  the  said  school 
fund  was  placed  :  .  .  .  that  the  said  Chesterfield  preparative  meet- 
ing of  Friends  at  Crosswicks,  of  which  this  defendant  is  a  mem- 
ber, holds  communication  with  the  yearly  meeting  of  Friends 
established  in  Philadelphia,  which  the  said  Joseph  Hendrickson, 
in  his  original  bill,  improperly  calls  the  Hicksite  party,  .  .  .  and 
which  yearly  meeting,  this  defendant  insists,  is  the  yearly  meet- 
ing of  the  ancient  and  true  society  of  Friends.  He  denies  that 
the  society  of  Friends  to  which  he  belongs,  have  seceded  from 
the  faith,  the  religious  institutions  or  government  of  the  ancient 
and  religious  society  of  Friends,  or  from  the  ancient  legitimate 
yearly  meeting  at  Philadelphia;  but  the  time  of  holding  it  has 
been  changed  from  the  third  second  day  in  the  fourth  month,  to 
the  second  second  day  of  the  same,  .  .  .  there  being  no  constitu- 
tional time  for  the  assembling  of  the  yearly  meeting,  the  time 
of  holding  it  was  changed  to  the  time  it  is  now  held.  .  .  .  The 
said  yearly  meeting  assembled  again  on  the  said  second  second 
day  in  the  fourth  month,  1828.  and  is  now  settled  on  its  ancient 
foundations  and  principles.  This  defendant,  therefore,  denies 
that  it  is  a  nesv  yearly  meeting  within  the  pale  of  one  already  in 
existence." 

The  testimony  on  this  subject,  of  some  of  the  witnesses,  is  to 
the  following  effect.  John  Gummere,  1  vol.  Evid.  315:  "Bur- 
lington monthly  meeting,  is  a  subordinate  branch  of  Burlington 
quarterly  meeting,  which  quarter  is  subordinate  to  the  Philadel- 
phia yearly  meeting."  Ibid,  318  :  "  That  yearly  meeting  ...  is 


JULY  TERM,  1832.  609 

Hendrickson  v.  Decow. 

held  annually,  on  the  third  second  day  of  the  fourth  month,  at 
Arch  street  meeting-house,  in  Philadelphia."  Samuel  Craft, 
1  vol.  Evid.  334,  says,  "  From  my  earliest  recollection,  I  have 
been  a  member  of  Burlington  quarterly  meeting,  and  for  about 
thirty-six  years  past,  I  have  been  a  member  of  Chesterfield 
monthly  meeting.  This  monthly  and  quarterly  meeting  now 
are,  and  have  been  during  all  that  period,  subordinate  branches 
of  Philadelphia  yearly  meeting,  held  for  many  years  past  in  the 
meeting  house  on  Arch  street,  on  the  third  second  day  in  the 
fourth  month,  annually."  Josiah  Gaskill,  2  vol.  Evid.  297, 
says,  "  The  monthly  meeting  which  I  am  a  member  of,  does  con- 
sider itself  members  of  Burlington  quarterly  meeting,  which  con- 
siders itself  members  of  the  yearly  meeting  of  Friends  held  in 
Philadelphia,  on  the  second  second  day  of  fourth  month,  at 
Green  street."  Ibid,  301  :  "  The  Burlington  quarterly  meet- 
ing .  .  .  held  at  Chesterfield  .  .  .  have  sent  representatives  to  the 
yearly  meeting  of  Friends  held  in  Philadelphia  in  fourth  month, 
ever  since  .  .  .  the  second  second  day  in  fourth  month  ...  at  Green 
street,  instead  of  Arch  street.  The  yearly  meeting  at  Green 
street  I  consider  the  yearly  meeting  of  Friends  .  .  .  and  because 
it  is  the  same  yearly  meeting  which,  prior  to  1827,  had  been 
held  in  Arch  street."  James  Brown  2  vol,  Evid.  321,  says, 
"These  quarterly,  monthly,  and  preparative  meetings,  are  but 
parts  of  the  one  great  whole,  the  yearly  meeting  ....  The  Ches- 
terfield monthly  and  preparative  meetings  were  component  parts 
of  the  Burlington  quarterly  meeting.  The  Burlington  quarterly 
meeting  was  a  branch  of  the  yearly  meeting,  which,  in  fourth 
month,  1827,  was,  and  for  many  years  before  had  been,  held ' 
in  Arch  street,  Philadelphia."  .  .  .  He  "  attended  most  part  of  the 
yearly  meeting  in  Arch  street,  1827,  as  a  member  of  the  society, 
and  belonging  to  Chesterfield  monthly  meeting."  Ibid,  .322 : 
"We  have  not  attached  ourselves,  as  I  apprehend,  to  any  other 
yearly  meeting  than  the  yearly  meeting  of  Philadelphia,  that  is 
reorganized,  and  held  on  the  second  second  day  in  fourth  month, 
annually  ....  We  do  not  consider  ourselves  members  of  the  year- 
ly meeting  held  there  (in  Arch  street)  since  1827."  "That  por- 
tion of  the  Chesterfield  preparative  meeting  which  .  .  .  continues 
to  hold  that  meeting  at  the  usual  time  and  places ;"  (that  is  to 

2Q 


610  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

say,  the  preparative  meeting .  whereby  Decow  was  appointed 
treasurer  of  the  school  fund,  as  is  elsewhere  shown  and  ex- 
pressed,) "  acknowledge  themselves,  or  claim  to  be,  a  part  of  the 
monthly  meeting  which  .  .  .  still  continues  a  member  of  the  Green 
street  yearly  meeting."  The  testimony  of  the  Jast  witness, 
James  Brown,  demands  peculiar  attention,  from  the  station  he 
held,  as  clerk  of  the  preparative  meeting  of  which  Decow  is  a 
member,  and  from  the  confidence  reposed  in  that  officer  by  the 
usages  of  the  society,  and  the  intimate  knowledge  he  must  ac- 
quire and  possess  of  the  acts,  connections,  and  sentiments  of  the 
meeting. 

It  thus  appears,  there  were  and  are  two  distinct  bodies,  each 
claiming  to  be  the  Chesterfield  preparative  meeting  of  Friends  at 
Crosswicks,  and  each  claiming  to  be  the  same  meeting  under 
whose  care  the  school  fund  was  placed,  and  yet,  de  jure,  re- 
mains. I  stop  here  a  moment,  to  fix  the  time  when  these  bodies 
were  distinctly  and  separately  organized,  in  order  to  ascertain 
whether  it  was  before  the  appointment  of  Decow  as  treasurer  of 
the  school  fund.  And  on  account  of  the  connection,  it  may  be 
useful  to  look  also  to  the  higher  meetings.  The  separation  in 
the  Burlington  quarterly  meeting,  appears  to  have  occurred  in 
the  eleventh  month,  1827.  Samuel  Emlen,  1  vol.  Evid.  325 ; 
Josiah  Gaskill,  2  vol.  Evid.  301  j  Charles  Stokes,  2  vol.  Evid. 
207.  The  latter  witness  says,  he  "attended- the  Burlington 
quarterly  meeting  in  the  eleventh  month,  1827.  At  that  meet- 
ing a  separation  did  take  place."  And  in  answer  (229)  to  this 
question,  "After  the  separation  of  which  you  have  spoken,  in 
1827,  did  your  quarterly  meeting  consider  itself  as  a  constituent 
branch  of  the  yearly  meeting  held  at  Arch  street,  Philadelphia, 
on  the  third  second  day  of  fourth  month  ?"  he  answered,  "  The 
quarterly  meeting  considered  itself  a  constituent  branch  of  the 
yearly  meeting  of  Philadelphia,  which  had  been  held  some  years 
previously  at  the  Arch  street  house,  on  the  third  second  day  of 
fourth  month ;  but  which,  owing  to  the  circumstances  which 
had  grown  out  of  the  unsettled  and  divided  state  of  society,  it 
was  concluded  should  be  held  on  the  second  second  day  of  fourth 
month." 

The  separation  in  the  monthly  meeting  of  Chesterfield,  or  the 


JULY  TERM,  1832.  611 


Hendrickson  v.  Decow. 


session  of  two  distinct  bodies,  and  the  transaction  of  business 
separately  by  these  bodies,  took  place  as  early  as  ninth  or  tenth 
month,  1827.  Samuel  Emlen,  1  vol.  JEvid.  324,  328,  331  ; 
Samuel  Craft,  1  vol.  Evid.  336,  337 ;  Josiah  Gaskill,  2  vol. 
Evid.  284.  He  fixes  the  time,  the  tenth  month,  1827,  and  says, 
"  There  did  a  separation  take  place  in  Chesterfield  monthly 
meeting  in  that  rftonth."  He  farther  states,  (296,)  that  the  Ches- 
terfield monthly  meeting  with  which  he  was  united,  did,  at  their 
meeting  in  that  month,  appoint  representatives  on  behalf  of  that 
meeting,  to  attend  the  contemplated  yearly  meeting  to  be  held 
in  Philadelphia,  in  that  same  month  ;  and  in  this  respect  he  is 
fully  supported  by  the  book  of  minutes,  which  is  before  us  as  an 
exhibit:  and  he  farther  testifies,  that  the  representatives,  with 
one  exception,  attended  the  yearly  meeting  in  the  tenth  month, 
1827. 

The  separation  in  the  preparative  meeting  of  Chesterfield, 
bears  date  in  the  twelfth  month,  1827.  Samuel  Emlen,  1  vol. 
Eoid.  325;  Samuel  Ci-aft,  I  vol.  EM.  339,  347;  Josiah 
Gaskill,  2  vol.  Evid.  286.  The  latter  witness  says,  (287,)  that 
after  those  who  separated  left  the  preparative  meeting,  the  meet- 
ing proceeded  in  first  month,  1828,  to  appoint  trustees  of  the 
school  fund,  and  that  Decow  was  appointed  treasurer  at  the  same 
meeting.  The  testimony  of  James  Brown  is  very  explicit  and 
satisfactory  on  this  topic,  and  its  importance,  from  the  station  he 
held  as  clerk  of  the  meeting,  has  been  already  suggested.  He 
says,  2  vol.  Eoid.  323,  that  the  appointment  of  Stacy  Decow  as 
treasurer  of  the  school  fund,  was  made  after  the  time  when  the 
separation  of  the  preparative  meeting  of  Chesterfield  into  two  bod- 
ies or  meetings,  each  calling  themselves  the  Chesterfield  prepara- 
tive meeting,  took  place. 

It  thus  clearly  appears,  that  before  the  appointment  of  Decow 
as  treasurer,  there  were  formed  and  existed,  two  distinct  bodies, 
claiming  to  be  the  Chesterfield  preparative  meeting  of  Friends; 
one  of  them  connected  with  a  body  calling  itself  the  ancient 
yearly  meeting  of  Friends  of  Philadelphia,  which  holds  its  ses- 
sions on  the  third  second  day  of  April,  in  a  meeting-house  on 
Arch  street;  and  the  other,  and  by  which  Decow  was  appoint- 
ed, which  disclaims  all  connection  with  the  above  mentioned 


612  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

yearly  meeting,  is  connected  with  another  body  calling  itself  the 
ancient  yearly  meeting  of  Friends  of  Philadelphia,  which  holds 
its  sessions  on  the  second  second  day  of  April,  in  a  meeting-house 
on  Green  street.  It  also  appears  there  are  two  separate  bodies,  styl- 
ing themselves  and  claiming  to  be,  the  ancient  and  constitutional 
yearly  meeting  of  Friends  of  Philadelphia.  There  is,  however, 
and  there  can  be,  as  is  asserted  and  admitted  by  all,  but  one  an- 
cient yearly  meeting,  and  but  one  body  entitled  to  that  appellation. 
This  truth  is  distinctly  admitted  by  the  pleadings  of  the  parties ; 
it  is  plainly  asserted  by  the  book  of  discipline,  which  all  who 
claim  to  be  of  the  society  of  Friends,  as  do  all  the  parties,  and  if 
my  memory  is  correct,  all  the  witnesses,  in  the  cause,  unqualifiedly 
admit  to  be  their  standard  and  their  guide ;  and  it  is  testified  by 
several  of  the  witnesses,  whose  depositions  I  have  already  noticed  ; 
to  which  may  be  added  that  of  Halliday  Jackson,  an  intelligent 
and  well  informed  witness  examined  on  the  part  of  Decow :  2  vol. 
Enid.  155. 

We  are  now  brought  to  the  inquiry,  which  of  these  two  bodies 
or  meetings  is  the  ancient  yearly  meeting  of  Friends  of  Phila- 
delphia? an  inquiry,  which,  if  I  may  judge  from  my  own  feel- 
ings and  reflections,  is  of  the  deepest  interest  and  importance. 
There  is,  and  can  be,  but  one  Chesterfield  preparative  meeting 
of  the  society  of  Friends.  There  is,  and  can  be,  but  one  year- 
ly meeting.  A  preparative  meeting  must  be  connected  with  the 
yearly  meeting  of  Philadelphia,  and  without  such  connection,  no 
assemblage  is  a  preparative  meeting.  One  of  these  bodies,  or 
preparative  meetings,  is  connected  with  the  one,  and  the  other 
with  the  other  of  the  yearly  meetings.  Which,  then,  is  the 
yearly  meeting?  Or,  to  confine  our  inquiry  within  the  only  re- 
quisite range,  is  the  meeting  or  body  assembling  on  the  second 
second  day  of  the  fourth  month,  at  Green  street,  the  ancient 
yearly  meeting?  If  it  is,  Decow  is  the  treasurer.  If  not,  as  I 
have  already  shown,  Hendrickson,  once  the  acknowledged  trea- 
surer and  the  obligee,  named  as  such  in  the  bond,  is  entitled  to 
the  money.  When  such  consequences  hang  on  this  question, 
may  I  not  call  it  interesting  and  important?  May  I  not  stand 
excused,  if  I  approach  it  with  great  anxiety  and  deep  solici- 
tude ? 


JULY  TERM,  1832.  613 

Hendrickson  v.  Decow. 

In  the  latter  part  of  the  seventeenth  century,  and  at  a  very 
early  period  in  the  progress  of  the  settlement  of  New- Jersey  and 
Pennsylvania,  the  number  and  condition  of  the  followers  of 
George  Fox,  or  the  people  called  Quakers,  rendered  it  desirable 
they  should  be  brought  under  a  common  head,  according  to  the 
form  of  ecclesiastical  government  adopted  in  England,  and  al- 
ready existing  in  some  of  the  more  ancient  colonies.  In  the  year 
1681  or  1685,  (the  precise  time  seems  to  be  controverted,  and 
cannot  influence  our  present  pursuits,)  a  yearly  meeting  was  es- 
tablished, comprehending  the  provinces  of  New-Jersey  and  Penn- 
sylvania, and  the  members  of  that  religious  society  and  their  al- 
ready organized  meetings  and  judicatories  of  inferior  grades. 
This  body  was  not  a  mere  incidental,  casual,  disconnected  as- 
semblage, convening  without  previous  arrangement,  ceasing  to 
exist  when  its  members  separated,  and  formed  anew  when  indi- 
viduals came  together  again  at  some  subsequent  time.  It  was  a 
regularly  organized  and  established  body,  holding  stated  sessions, 
corresponding  with  other  bodies  of  the  same  religious  denomina- 
tion, consulting  together  for  the  welfare  of  a  portion  of  their 
church  and  its  members,  the  ultimate  arbiter  of  all  differences, 
and  the  common  head  and  governor  of  all  belonging  to  the  so- 
ciety of  Friends,  within  its  jurisdiction,  which  extended  over  the 
territories  just  mentioned,  while  they  were  called  provinces,  and 
since  they  assumed  the  name  and  rank  of  slates.  The  meetings 
of  this  body  were  held  annually,  as  its  name  imports,  and  as 
long  and  steady  usage  has  wrought  into  a  part  of  its  essential 
structure.  The  time  and  place  of  convention  are  subject  to  its 
control,  and  have,  accordingly,  in  several  instances,  been  fixed 
and  altered  by  it.  The  time  and  place,  however,  when  and 
where  only  the  body  can  constitutionally  assemble  and  act,  must, 
when  fixed,  so  remain,  until  "the  voice  of  the  body,"  "in  a 
yearly  meeting  capacity,"  which  alone  has  the  power  and  right 
"to  govern  its  own  proceedings,"  shall  resolve  on  and  enact  a 
change.  Such  is  certainly  the  rule  of  constitutional  law,  as  ap- 
plicable to  this  body;  and  such  was  their  own  practical  construc- 
tion of  it,  in  the  year  1798,  when  in  the  consciencious  discharge 
of  duty,  they  assembled,  undeterred  by  the  ravages  of  pestilence 
and  the  arrows  of  death.  From  the  year  1685,  for  nearly  a 


614  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

century  and  a  half,  this  body  held  its  periodical  sessions  ;  for 
years,  alternatily  at  Burlington  and  Philadelphia,  and  finally  in 
the  latter  city  alone ;  and  there,  successively,  at  their  houses  on 
Pine  street,  on  Keyes'  alley,  and  on  Arch  street.  Changes  in 
time  and  place  have  occurred  ;  but  always  by  a  previous  resolve, 
by  "  the  voice  of  that  body,"  "  in  a  yearly  meeting  capacity." 
In  1811,  the  place  was  fixed  in  the  meeting-house  on  Arch 
street.  In  1798,  the  time  was  changed  to  the  third  second-day 
of  the  fourth  month  of  each  year;  and  by  the  book  of  discipline, 
promulged  by  the  yearly  meeting  in  1806,  and  as  already  ob- 
served, the  acknowledged  constitution  of  this  religious  community, 
the  latter  day  is  declared  the  period  for  its  convention.  No  other 
day  is  mentioned  ;  no  other  day  is  provided  for  under  any  circum- 
stances; nor  is  any  occasional,  intermediate,  or  special  meeting  au- 
thorized. 

In  the  year  1826,  at  the  prescribed  time  and  place,  a  meeting 
was  held.  After  the  transaction  of  its  business,  it  adjourned, 
according  to  the  ancient  and  wonted  form,  "  to  meet  in  the  next 
year  at  the  usual  time."  This  body,  thus  convened  and  thus 
adjourned,  was,  without  dispute,  the  Philadelphia  yearly  meeting 
of  Friends.  On  the  third  second-day  of  April,  1827,  at  the 
house  on  Arch  street,  the  designated  time  and  place,  a  meeting 
assembled.  It  was  composed  of  the  representatives  from  the 
several  quarterly  meetings,  and  of  all  such  individuals  as  incli- 
nation or  duty  had  brought  together.  The  regular  constituent 
parts  were  there.  Those  who  are  since  so  openly  divided  by 
name,  perhaps  by  feeling,  peradventure  by  principles,  then  sat 
down  together;  one  in  form,  if  not  in  spirit;  in  unity  of  body, 
if  not  of  mind.  The  clerk  of  the  preceding  year,  according  to 
ancient  rule,  opened  the  meeting  in  due  order;  for  however  sim- 
ple, there  was,  nevertheless,  an  established  ceremony.  The 
representatives  were  called,  certificates  of  visiting  strangers  were 
received,  epistles  from  corresponding  bodies  were  read,  commit- 
tees were  arranged,  the  usual  affairs  of  the  occasion  were  trans- 
acted in  unity  and  peace.  The  representatives  were,  in  wonted 
manner,  desired  to  abide  for  the  next  step  in  the  progress  of  bu- 
siness. This  body  thus  convened,  was  assuredly  the  yearly  meet- 
ing ;  and  up  to  the  close  of  the  forenoon,  it  sustained  its  consti- 


JULY  TERM,  1832.  615 

Hendrickson  v.  Decow. 

tutional  existence.  If  that  assemblage  ceased  to  be  the  Philadel- 
phia yearly  meeting,  something  which  occurred  subsequent  to  the 
close  of  the  first  sitting  must  have  wrought  out  that  result. 

Such  result  was  produced,  say  the  defendant,  Decow,  and  the 
meeting  whereby  he  was  appointed  treasurer.  This  body  ceased 
to  be  the  yearly  meeting  of  Friends,  was  dissolved,  broken  up 
"  into  its  individual  elements,"  (Abraham  Lower,  I  vol.  Euid. 
421,)  and  reorganized  in  the  ensuing  autumn,  iu  the  yearly  meet- 
ing which  assembled  in  Green  street,  which  became  invested  with 
the  constitutional  powers  and  rights  incident  to  the  Philadelphia 
yearly  meeting,  and  the  successor,  or  rather  the  continuance  of  the 
same  body,  which  had  been  formed  in  the  seventeenth  century,  at 
Burlington,  and  had  from  thence  conducted  and  governed  the  af- 
fairs of  the  society,  and  connected  with  itself  the  subordinate  meet- 
ings, and  this  whole  religious  community. 

Our  next  duty,  then,  is  to  examine  the  causes  which  are  al- 
leged to  have  deprived  this  body  of  constitutional  existence.  And 
these  are,  first,  the  acts  of  the  body  in  a  collective  capacity;  se- 
cond, the  omission  of  the  body  to  perform  certain  collective  du- 
ties; and,  third,  the  designs,  plans,  views,  feelings  and  acts  of 
individual  members.  Under  one  or  other  of  these  is  compre- 
hended, it  is  believed,  every  operating  cause  suggested  in  the 
pleadings,  in  the  testimony  of  the  witnesses,  and  in  the  arguments 
of  the  counsel. 

The  only  acts  alleged  against  the  body  in  a  collective  capacity, 
are  two  in  number.  First,  the  appointment  of  a  clerk  of  the  meet- 
ing; and  secondly,  the  appointment,  near  the  close  of  the  session, 
of  a  committee  to  visit  the  subordinate  meetings. 

First,  The  appointment  of  clerk  to  the  meeting.  •  To  regard  the 
act  against  which  this  complaint  is  directed,  as  the  appointment 
of  a  clerk,  is  an  entire  misapprehension.  It  was,  in  truth,  no 
more  than  the  continuance  in  office  of  the  former  clerk  ;  and  as 
it  seems  to  me,  so  far  from  an  act  of  the  body  in  its  collective 
capacity,  in  violation  of  any  rule,  it  was  a  strict,  and  under  the 
circumstances  in  which  the  meeting  was  placed,  an  unavoidable 
compliance  with,  and  adherence  to,  the  ancient  custom  and  order 
of  the  society. 

According  thereto,  the  nomination  of  clerk  is  to  be  made,  not 


616  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

in  or  by  the  meeting  at  large,  but  by  the  representatives,  as  they 
are  called,  or  in  other  words,  the  persons  deputed  by  the  several 
quarterly  meetings  to  attend,  not  merely  as  individuals,  but  as 
the  organs  of  those  meetings,  in  their  official  character. 

The  representatives,  pursuant  to  the  request  already  mention- 
ed, remained  at  the  close  of  the  forenoon  session,  to  discharge 
this  duty.  It  is  not  my  purpose  to  inquire  into,  or  relate  in  de- 
tail, what  passed  among  them.  In  the  result,  they  could  not 
agree,  or  did  not  agree,  on  the  names  of  any  persons  to  be  pro- 
posed for  the  offices  of  clerk  and  assistant ;  and  a  report  to  this 
effect  was  made  to  the  yearly  meeting,  when  it  opened  in  the 
afternoon.  No  nomination  was  offered.  Put,  now,  the  case  in 
the  strongest  view ;  suppose  the  representatives  had  wantonly,  or 
in  neglect  of  their  tcust,  omitted  to  propose  names  to  the  meet- 
ing? Was  all  further  proceeding  at  an  end?  Was  the  meeting 
closed  ?  The  Book  of  Discipline,  it  is  true,  prescribes  no  guide 
or  directory  under  such  circumstances.  But  ancient  custom, 
founded  on  the  obvious  dictates  of  reason, Jiad  established  in  this 
respect  an  operative  law.  The  clerk  and  his  assistant,  of  the 
preceding  year,  were  to  act,  and  without  any  new  appointment 
or  induction,  were  authorized  to  continue  to  discharge  their  ap- 
propriate functions,  until  the  names  of  other  persons  were  regu- 
larly brought  forward,  and  united  with,  or  in  other  words,  ap- 
pointed. •  In  accordance  therewith,  and  in  view  of  the  condition 
of  the  meeting,  and  of  the  difficulty  which  existed,  an  aged 
member  (William  Jackson)  who  had  attended  more  than  sixty 
years,  and  had  thus  acquired  experience,  perhaps,  beyond  any 
individual  of  the  assembly,  rose  and  stated,  that  "  it  had  been 
always  the  practice  for  the  old  clerks  to  serve  until  new  ones 
were  appointed ; "  and  he  proposed  to  the  meeting,  "  that  the 
present  clerks  should  be  continued  for  that  year."  (Thomas 
Evans,  I  vol.  Evid.  265.)  Some  difference  of  opinion  occurred 
and  was  expressed,  as  to  the  course  most  eligible  to  be  pursued. 
Some  persons  wished  to  refer  the  subject  again  to  the  representa- 
tives, for  farther  consideration.  "  Several  of  the  representatives 
gave  it  as  their  opinion,  there  would  be  no  advantage  in  so  refer- 
ring it,  as  there  was  not  the  smallest  probability  that  they  could 
agree.  The  first  person  who  expressed  this  opinion,  was  one  of 


JULY  TERM,  1832.  617 


Hendrickson  v.  Deco^. 


those  who  have  since"  united  with  the  meeting  in  Green  street; 
"and  he  added,  that  although  he  should  have  been  in  favor  of  a 
change  in  the  clerk,  if  it  could  have  been  satisfactorily  accom- 
plished, yet  as  that  was  not  likely  to  be  the  case,  he  thought  the 
meeting  had  better  proceed  with  its  business.  Several  others 
of  the  same  party  expressed  similar  sentiments.  Meanwhile  a 
considerable  number  of  those"  who  remain  attached  to  the  Arch 
street  meeting,  "  expressed  their  approbation  of  the  continuance 
of  the  present  clerks,  and  a  minute  desiring  the  old  clerks  to 
continue  to  serve  the  meeting,"  (Samuel  Bdtle,  I  vol.  Evid. 
68,)  was  made  and  read.  "  On  the  reading  of  the  minute,  some 
of  those  who  "  now  belong  to  the  Green  street  meeting,  "still 
continued  to  object,  when  one  of  their  number  remarked,  he  be- 
lieved it  was  the  best  thing  the  meeting  could  do,  under  all  the 
circumstances,  and  advised  them  to  submit  to  it,  as  he  did  not 
think  it  would  make  so  much  difference  to  them,  as  some  of 
them  might  imagine.  Similar  sentiments  were  expressed  by  one 
or  two  others  of  that  party,  and  all  objections  to  the  appointment 
having  ceased,  John  Comly,  the  assistant  clerk,  was  requested 
to  come  to  the  table.  He  did  not  immediately  do  so,  nor  until 
several  of  his  friends  expressed  that  they  thought  that  the  busi- 
ness of  the  meeting  had  better  go  forward."  The  usual  business 
then  proceeded.  This  view,  is  chiefly  extracted  from  the  testi- 
mony of  Thomas  Evans.  It  is  fully  sustained  by  the  depositions 
of  Samuel  Bettle  and  Joseph  Whitall,  and  is,  in  no  material 
point,  impugned  by  any  contradictory  evidence.  Some  other 
witnesses,  who  speak  of  these  transactions,  are  not  so  full  and 
minute  in  detail,  and  some,  it  is  to  be  regretted,  do  not  recollect 
the  occurrences  of  very  interesting  moments ;  as,  for  example, 
one  of  them,  speaking  of  the  afternoon  of  the  first  day,  and 
having  related  some  of  the  events,  added,  "  The  meeting  pro- 
ceeded on  that  afternoon  :  I  don't  remember  particularly  what 
took  place  : "  Halliday  Jackson,  2  vol.  Ecid,  54.  In  their  opin- 
ions, in  their  inferences,  in  their  feelings,  we  observe,  as  might 
be  expected,  a  difference  among  the  witnesses,  but  it  is  pleasing 
to  meet  with  no  such  collision  of  facts,  as  to  render  necessary 
the  delicate  and  arduous  duty  of  weighing  and  comparing  evi- 
dence. 


618  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

It  is,  however,  said,  the  greater  number  of  the  representatives 
wished  to  release  the  former  clerk,  and  to  nominate  another  in 
his  stead ;  that  a  proposal  was  made  to  take  their  sense  by  a 
vote ;  and  that  this  measure,  which  would  have  resulted  in  a 
majority  for  a  new  clerk,  was  prevented  and  defeated  by  the 
conduct  of  those  who  sought  to  retain  the  services  of  the  former 
officer. 

One  of  the  peculiar  and  distinguishing  characteristics  of  this 
people,  consists  in  their  mode  of  transacting  business  and  ar- 
riving at  conclusions ;  in  which,  rejecting  totally  the  principle 
that  a  majority,  as  such,  is  to  rule,  or  decide,  or  govern,  they 
arrive  at  an  unity  of  resolution  and  action,  in  a  mode  peculiar 
to  themselves,  and  entirely  different  from  that  common  to  all  civil 
or  political,  and  to  most  ecclesiastical  bodies.  They  look  and 
wail  for  an  union  of  mind ;  and  the  result  is  produced,  not  by  a 
vote  or  count  of  numbers,  but  by  an  yielding  up  of  opinions,  a 
deference  for  the  judgment  of  each  other,  and  an  acquiescence  or 
submission  to  the  measure  proposed.  Where  a  division  of  senti- 
ment occurs,  the  matter  is  postponed  for  farther  consideration,  or 
withdrawn  or  dismissed  entirely  ;  or,  after  sometimes  a  tempe- 
rate discussion,  and  sometimes  a  silent  deliberation,  those  who 
support,  or  those  who  oppose  a  measure,  acquiesce  in  the  sense 
of  the  meeting  as  collected  and  minuted  by  the  clerk  ;  and  they 
believe  the  "  spirit  of  truth,"  when  the  meeting  is  "  rightly  gath- 
ered," will  be  transfused  through  their  minds,  and  they  will  be 
guided  and  influenced  "  by  a  wisdom  and  judgment  better  than 
their  own,"  and  that  their  clerk  will  be  led  to  act  under  "  the 
overshadowing  of  that  power,  which  is  not  at  his  command,  and 
which  will  enable  him  to  make  proper  decisions."  One  of  the 
witnesses  examined  on  the  part  of  Decow,  informs  us,  the  clerk 
"collects,  not  by  an  actual  count  of  numbers,  or  recording  the 
yeas  and  nays,  yet  by  an  estimate  of  the  prevailing  sense,  which 
the  meeting,  after  discussion,  usually  settles  with  sufficient  dis- 
tinctness, one  way  or  the  other : "  Charles  Stokes,  2  vol.  Evid. 
249.  The  account  given  by  Clarkson,  in  his  Portraiture  of  Qua- 
kerism, is  represented  to  be  correct,  although  never  expressly  re- 
cognized by  the  society.  "  When  a  subject  is  brought  before  them, 
it  is  canvassed  to  the  exclusion  of  all  extraneous  matter,  till  some 


JULY  TERM,  1852.  619 

Hendrickson  v.  Decow. 

conclusion  results;  the  clerk  of  the  meeting  then  draws  up  a 
minute,  containing,  as  nearly  as  he  can  collect,  the  substance 
of  this  conclusion;  this  minute  is  then  read  aloud  to  the  auditory, 
and  either  stands  or  undergoes  an  alteration,  as  appears  by  the 
silence  or  discussion  upon  it,  to  be  the  sense  of  the  meeting; 
when  fully  agreed  upon,  it  stands  ready  to  be  recorded  :"  1  Clark- 
son' 's  Portrait.  Quak.  157.  The  world  at  large,  and  especially 
those  who  have  not  closely  observed  the  practical  operation  of 
these  principles,  in  the  peace  and  harmony  and  prosperity  of  the 
internal  affairs  of  this  religious  community,  may  be  strongly  in- 
clined to  call  in  question  their  expediency.  A  republican  spirit 
may  see  no  just  rule,  but  in  the  voice  of  a  majority.  .  A  jealousy 
of  power  may  suspect  too  much  confidence  in  the  fairness  and 
candor  of  the  clerk.  But  the  conclusive  answer  to  all  such  sug- 
gestions and  suspicions  is,  that  they  are  free  to  act  as  their  judg- 
ments and  consciences  may  dictate.  We  are  not  to  interfere  with 
their  church  government  any  more  than  with  their  modes  of  faith 
and  worship.  We  are  to  respect  their  institutions,  and  to  sustain 
them.  Nor  can  any  individual  be  hereby  aggrieved.  He  is  un- 
der no  restraint  to  remain,  among  them.  Whenever  he  is  per- 
suaded that,  either  their  faith  or  their  practice,  does  not  accord 
with  his  own  views  of  reason  and  scripture,  he  is  at  liberty  to 
leave  them,  and  to  seek  elsewhere,  more  purity,  more  spirituali- 
ty, more  Christian  and  scripture  order,  ra^ore  safety,  more  republi- 
canism, or  more  peace.  The  constitution  of  this  society  neither 
recognizes  nor  makes  provision  for  a  vote,  or  a  decision  on  the 
principle  of  numbers,  in  any  instance  or  predicament.  The 
minutes  and  journals  of  the  various  meetings,  not  merely  within 
the  bounds  of  this  yearly  meeting,  but  within  the  pale  of  the 
whole  society,  do  not  furnish,  so  faf  as  we  are  able  to  learn,  a 
ingle  record  of  a  vote  taken,  or  a  count  of  numbers.  The  in- 
stances of  reports  made  by  the  major  part  of  committees,  form 
no  exception  to  the  universality  of  this  rule  of  action.  Nor  do 
the  few,  I  say  few  emphatically,  compared  with  the  myriads 
of  decisions  standing  on  their  records,  nor  do  the  few  minutes, 
which  industry  has  gleaned  up,  of  expressions  like  these:  "the 
greatest  part  of  Friends  think  it  best,"  or  "  it  appears  to  be  the 
most  general  sense,"  serve  to  show  that  a  vote  was  taken,  or  that 


620  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

numbers,  as  such,  prevailed,  or  that  the  minor  part  did  not  freely 
relinquish  their  views,  'and  cordially  acquiesce  in  those  of  the 
greater  part.  Let  us,  for  example,  look  to  the  minutes  of  Ches- 
terfield monthly  meeting,  of  sixth  month,  1691,  because  it  is 
of  Chesterfield,  and  of  very  ancient  date.  "The  building  of  the 
meeting  houses  being  taken  into  consideration,  a  meeting  house 
on  this  side  is  generally  agreed  upon  to  be  built,  and  the  greatest 
part  of  Friends  think  it  best  to  have  it  at  the  grave  yard."  Here 
is  no  allusion  to  a  vote,  nor  any  thing  to  indicate  that  all  did  not 
acquiesce  in  what  the  greatest  part  thought  best.  Barclay,  in  his 
treatise  on  Church  government,  gives  the  following  explanation, 
and  most  pointedly  condemns  the  rule  of  the  greatest  number. 
"The  only  proper  judge  of  controversies  in  the  church,  is  the 
spirit  of  God  ;  and  the  power  of  deciding  lies  solely  in  it,  as  hav- 
ing the  only  unerring,  infallible  and  certain  judgment  belonging 
to  it;  which  infallibility  is  not  necessarily  annexed  to  any  per- 
sons, person  or  place,  whatever,  by  virtue  of  any  office,  place  or 
station  anyone  may  have,  or  have  had,  in  the  body  of  Christ; 
that  is  to  say,  that  any  have  ground  to  reason  thus,  because  I 
am,  or  have  been,  such  an  eminent  member,  therefore  my  judg- 
ment is  infallible,  or  because  we  are  the  greatest  number :"  Bar- 
clay on  Church  Government,  78.  Hence  then,  I  think,  we  are 
not  called  to  inquire  how  far  the  allegation  as  to  the  relative 
numbers  of  the  representatives,  is  correct,  and  we  may  justly 
dismiss  from  farther  consideration,  the  objection  that  the  old  clerk 
would  not  have  received  a  majority  of  votes.  The  very  propo- 
sal to  take  a  vote,  was  an  overture  to  depart,  and  the  consum- 
mation of  it  would  have  been  a  departure,  from  an  ancient  and 
unvarying  practice,  which  had  not  only  grown  up  to  an  overshad- 
owing tree,  but  had  its  root- in  religious  faith,  and  was  nourished 
and  sustained  by  religious  feeling. 

The  inquiry,  too,  is  of  little  importance,  since,  as  I  have  shown, 
the  omission  of  the  representatives  to  agree  in,  and  propose  a 
nomination,  only  resulted  in  a  continuance  of  the  former  officers, 
and  did  neither  abridge,  impair  or  destroy,  the  power  of  the 
meeting  to  provide  for  collecting  and  recording  their  acts  and  pro- 
ceedings. 

Let  us,  then,  return  to  the  yearly  meeting.     Here  again,  it  is 


JULY  TERM,  1832.  621 

Hendrickson  v.  Decow. 

said,  a  majority  was  opposed  to  the  farther  service  of  the  former 
clerk,  and  his  continuance  contrary  to  their  will,  was  not  only  an 
oppression  of  the  few  over  the  many,  but  was  in  fact  a  dissolution 
of  the  body.  I  am  not  able  to  say,  from  the  evidence,  if  in  any 
wise  material,  that  even  at  the  outset,  this  continuance  was  incon- 
sistent with  the  wishes  of  the  greater  part  of  the  meeting.  But 
if  such  were  the  truth,  it  is  abundantly  shown,  there  was  an  acqui- 
escence in  the  measure,  even  if  an  unwilling  one.  And  this  ac- 
quiescence was  brought  about  by  the  agency  and  recommendation 
of  some  of  those  who  are  now  the  members  of  the  rival  yearly 
meeting.  The  following  facts  are  stated  by  the  witnesses.  "  A 
proposition  came  from  a  leading  member."  (Joseph  Whitall,  1 
vol.  Evid.  218.)  After  the  minute  was  read,  "  one  of  their  number 
expressed  his  belief  it  was  the  best  thing  the  meeting  could  do 
under  all  the  circumstances,  and  advised  them  to  submit  to 
it :"  Thomas  Evans,  1  vol.  Evid.  266.  "  One,  and  perhaps 
there  were  others,  stated  as  their  belief,  it  would  be  right,  and 
encouraged  his  friends  to  accede  to  the  proposition  "  for  the  con- 
tinuance of  the  former  clerks:  Joseph  Whitall,  1  vol.  Evid.  217. 
"  Efforts  were  made  by  persons,  who  have  since  "  united  with  the 
Green  street  meeting,  "  to  induce  an  acquiescence  with  the  minute. 
At  length,  all  opposition  ceased  :"  Samuel  Settle,  1  vol.  Evid.  69. 
Here,  then,  might  have  been  opposition  and  dissatisfaction  at  the 
outset.  But  it  is  clear  there  was  an  ultimate  acquiescence.  And 
it  is  too  much  for  any  one,  especially  for  those  who  took  an  active 
and  influential  part  in  bringing  about  this  result,  perhaps  we  may 
say,  actually  induced  the  peaceful  result,  to  make  it  the  subject  of 
complaint,  or  to  insist  that  the  existence  of  the  body  was  thereby 
destroyed. 

There  is  another  fact  worthy  of  much  consideration,  in  look- 
ing into  the  propriety  of  these  proceedings;  which  is,  that  no  per- 
son, save  Samuel  Bettle,  the  former  clerk,  was  proposed  for  the 
office.  The  importance  of  this  circumstance  in  civil  affairs,  is 
thus  shown  in  the  recent  American  treatise  on  the  law  of  corpora- 
tions. "  Where  a  majority  protest  against  the  election  of  a  pro- 
posed candidate,  and  do  not  propose  any  other  candidate,  the 
minority  may  elect  the  candidate  proposed  :"  Angell  and  Ames  on 
Corp.  67. 


622  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

After  all  these  events,  I  can  have  no  hesitation  in  yielding  to 
the  entire  and  unqualified  conviction,  that  the  body  remained  in  its 
pristine  vigor,  and  proceeded  to  business  as 'the  Philadelphia  yearly 
meeting  of  the  society  of  Friends. 

The  other  act,  whereby,  it  is  said,  the  discipline  was  violated, 
the  society  separated,  and  the  constitutional  existence  of  the  yearly 
meeting  destroyed,  is  the  appointment  of  a  committee  to  visit  the 
subordinate  meetings. 

It  would  be  very  difficult,  I  think,  to  demonstrate,  that  an  act 
of  this  nature,  if  not  warranted  by  the  discipline,  or  even  if  in- 
consistent with  it,  could  work  such  sweeping  results.  The  pur- 
pose and  authority  of  this  committee,  were  simply  to  visit,  coun- 
sel and  advise  the  inferior  meetings,  with  no  power,  whatever,  to 
act  upon  or  control  the  rights  or  interests  of  any  one,  save  by 
measures  of  persuasion.  How  far  the  temper  or  motive,  which 
led  to  the  appointment  of  this  committee,  may  have  been  repre- 
hensible, I  shall  examine  under  another  head.  It  is  to  the  act 
alone,  that  my  attention  is  now  directed  ;  and  the  act  itself,  was 
in  its  nature,  harmless.  Let  us,  however,  look  more  closely  ink) 
the  circumstances.  They  are  thus  represented  by  one  of  the 
witnesses.  "  A  proposition  was  brought  from  the  women's  meet- 
ing ...  to  appoint  a  committee  to  visit  the  quarterly  and  monthly 
meetings.  This  called  forth  a  great  deal  of  excitement,  .  .  .  and 
great  opposition  was  made  to  it.  Even  some  few  of  the  Ortho- 
dox party  themselves,  did  not,  at  first,  appear  to  approve  of  it. 
But  there  were  others  of  that  party  that  strenuously  urged  the 
propriety  of  such  a  committee  being  appointed,  and  as  they 
seemed  to  understand  one  another  pretty  well,  apparently,  they 
pretty  soon  united  in  urging  the  measure.  It  was,  however, 
strongly  opposed  by  much  the  larger  part  of  the  meeting ;  I  can- 
not undertake  to  state  the  proportions,  but  I  should  think  myself 
safe  in  saying,  two-thirds  of  those  that  spoke.  But  it  seemed  all. 
of  no  avail,  .  .  .  and  having  a  clerk  at  the  table  subject  entirely  to 
the  dictates  of  his  party,  he  made  a  minute  and  took  down  the 
names  of  the  committee  that  were  offered  to  him.  No  Friend,  I 
believe,  undertook  to  mention  a  name :"  Jlaliiday  Jacfeon,  2 
vol.  Evid.  56.  Another  witness  gave  the  following  representa- 
tion : — "  At  the  last  sitting,  on  seventh  day  morning,  a  proposi- 


JULY  TERM,  1832.  623 


Hendrickson  v.  Decow. 


tion  was  introduced  from  the  women's  meeting,  to  appoint  a  com- 
mittee to  visit  the  respective  subordinate  meetings,  for  their 
strength  and  encouragement.  To  this  there  was  a  decided  ob- 
jection made ;  some  Friends  then  in  the  meeting  and  now  at- 
tached to  each  of  the  parties,  opposed  it.  The  doubt  of  some 
was,  that  it  had  better  not  be  decided  at  that  time ;  with  others, 
there  was  a  decided  opposition  to  the  measure.  At  this  juncture, 
a  Friend  stated  lo  the  meeting  the  out-door  proceedings,  the  pri- 
vate meetings,  and  opened  the  whole  subject.  It  appeared  to  me 
evidently  to  create  uneasiness  and  alarm  on  the  part  of  those 
who  had  been  concerned  in  those  meetings ;  some  of  them  call- 
ed in  question  the  accuracy  of  the  statement  that  had  been  made, 
and  seemed  disposed  to  deny  it;  some  did  deny  it;  others,  how- 
ever, said  that  the  general  statement  was  correct,  and  acknow- 
ledged it.  The  propriety  of  appointing  a  committee  under  such 
circumstances,  appeared  so  very  obvious,  that  the  opposition,  in 
a  great  measure,  ceased  for  that  time  ;  after  which  there  was  a 
greater  and  more  general  expression  of  unity  with  the  measure, 
than "  the  witness,  a  clerk  of  several  years'  experience,  "  had 
often,  if  ever,  seen  or  heard."  "  I  had,"  says  the  witness,  "  been 
watching  the  course  of  events,  as  clerk  of  the  meeting,  to  know 
how  to  act;  and  when  all  opposition  had  ceased,  and  it  was  very 
apparent  it  was  the  sense  of  the  meeting  that  the  appointment 
should  be  made,  I  rose  and  stated  that  I  had  had  my  doubts, 
when  this  proposition  was  first  brought  if),  whether  it  was  expe- 
dient to  adopt  it  at  that  time,  but  as  the  servant  of  the  meeting, 
it  being  manifestly  its  sense,  I  should  now  proceed  to  make  the 
minute,  and  accordingly  made  it,  and  united  with  them  in  their 
views;  and  a  committee  was  appointed  pursuant  to  the  minute  :" 
Samuel  Settle,  1  vol.  Evid.  69.  Whatever  difference  may  be 
in  these  statements,  as  to  matters  of  opinion  ;  whatever  suspi- 
cions may  have  been  enkindled;  whatever  motives  or  designs 
may  be  imputed,  here  is  no  substantial  discrepancy  as  to  points  of 
fact. 

Was,  then,  the  appointment  of  such  a  committee  a  novel,  and 
therefore  an  alarming  occurrence?  More  than  one  witness  testi- 
fies, and  no  one  denies,  that  it  was  an  ancient  custom  of  the  so- 
ciety :  Samuel  Bettle,  I  vol.  Evid.  70 ;  Halliday  Jackson, 


624  CASES  IN  CHANCERY. 

Hendrickson  v.  Decovr. 

2  vol.  Evid.  133.  Had  the  meeting  power  to  make  such  ap- 
pointment ?  Aside  of  the  multitude  of  unquestioned  precedents, 
a  witness  says,  "  during  the  discussion  of  the  proposition,  there 
•was  no  suggestion  of  a  doubt  of  the  right  and  power  of  the  year- 
ly meeting  to  appoint  such  committee ;  the  difference  of  opinion 
way  confined  to  the  expediency  of  making  the  appointment  at  that 
time :"  Samuel  Settle,  1  vol.  Evid.  70.  Was  the  purpose  of  the 
appointment  laudable  ?  It  was  to  advise  and  counsel  the  inferior 
meetings,  in  the  language  of  one  of  the  witnesses,  "for  their 
strength  and  encouragement."  And  if  the  design  was  to  prevent 
schism  and  separation,  the  end  was,  surely,  commendable;  and  if 
the  measures  taken  to  attain  it,  were  otherwise,  the  censure  should 
rest  on  the  committee,  the  agents,  and  not  on  the  meeting,  the  con- 
stituents. Was  partiality  exercised  by  the  clerk,  or  any  other 
person,  in  the  selection  of  the  committee?  No  name  which  was 
proposed  was  rejected.  Was  there  opposition  to  the  appointment? 
Strong  and  decided  at  the  outset.  Was  there,  at  length,  an  acqui- 
escence? "A  greater  and  more  general  expression  of  unity  than 
usual,"  says  one  witness.  "  The  opposition  pretty  generally,  if  not 
altogether  ceasing,"  says  another  witness,  "  the  meeting  proceeded 
to  appoint:"  Joseph  Whitall,  I  vol.  Evid.  218.  Another  says, 
"As  all  opposition  ceased,  a  minute  was  made,  and  the  committee 
appointed :"  Thomas  Evans,  1  vol.  Evid.  268.  These  matters  of 
fact,  are,  I  believe,  un contradicted.  One  of  the  witnesses,  indeed, 
intimates,  that  the  clerk  made  the  minute,  being  subject  entirely 
to  the  dictates  of  his  own  party.  But  the  clerk  himself,  whose 
veracity  and  candor  are  not  only* above  reproach,  but  beyond  sus- 
picion, and  who  surely  best  knew  his  own  motive  of  action,  says, 
that  though  doubting  at  first  the  expediency  of  the  measure,  he 
made  the  minute,  as  the  servant  of  the  meeting,  and  because  it  was 
manifestly  their  sense  that  the  appointment  should  take  place. 

Upon  a  careful  examination  of  this  measure,  I  can  see  nothing, 
either  in  the  act  itself,  or  in  the  manner  of  its  inception,  progress 
or  adoption,  subversive,  in  the  slightest  degree,  of  usage  or  disci- 
pline, and  least  of  all,  any  thing  of  such  vital  influence  as  to  break 
asunder  the  bonds  of  union,  disfranchise  the  meeting,  deprive  it 
of  constitutional  existence,  disrobe  it  of  ability  farther  to  execute 


JULY  TERM,  1832.  625 

Ilendrickson  v.  Decovr. 

its  ancient  and  appropriate  functions,  or  to  release  from  their  al- 
legiance all  those  who  previously  owed  fealty  and  submission 
to  it. 

These,  then,  are  all  the  overt  acts  of  the  meeting,  which  have 
been  made  the  subject  of  complaint.  It  would,  however,  be  a 
great  error  to  suppose,  that  a  session  of  five  or  six  days  was  spent 
in  these  matters  alone.  Much  other  important  business  was 
transacted;  all,  I  believe,  it  may  be  said,  of  the  usual  stated 
duties  were  discharged.  Halliday  Jackson  gives  the  following 
brief  but  satisfactory  account  of  what  was  done.  "  The  busi- 
ness of  the  yearly  meeting  was  proceeded  in;  and  the  usual  sub-' 
jects  that  occupy  that  body,  such  as  considering  the  state  of  the 
society  from  the  answers  to  the  queries  that  are  brought  up  from 
the  different  quarterly  meetings  in  their  reports ;  the  reading  of 
the  minutes  of  the  meeting  for  sufferings;  reading  reports  from 
the  committee  who  stood  charged  with  "Westown  school,  and 
some  other  matters;  which  occupied  the  meeting  through  the 
week;"  2  vol.  Evid.  55.  Another  witness  says,  "All  the  busi- 
ness usually  transacted  at  a  yearly  meeting,  was  gone  through 
with,  and  several  acts  consummated,  which  no  other  body  than 
the  yearly  meeting  of  Philadelphia  was  competent  to  perform:"' 
Thomas  Evans,  1  vol.  Evid.  267. 

Having  thus  reviewed  what  was  done,  we  are  now  to  turn  our 
attention  to  what  was  not  done  by  the  meeting;  for  the  latter,  as 
well  as  the  former,  has  been  urged  as  an  at?t  of  separation  and 
disfranchisement  of  the  yearly  meeting. 

Certain  subjects,  regularly  brought  before  that  body,,  were  not 
acted  upon,  but  postponed.  "  When  the  reports,"  says  one  of  the 
witnesses,  "  were  taken,  or  the  subjects  contained  in  the  reports, 
from  the  different  quarterly  meetings,  which  were  considered  as 
new  matter;  such  as  the  account  from  the  southern  quarter  re- 
specting the  meeting  for  sufferings,  rejecting  their  representatives, 
and  an  application,  I  think,  from  Bucks  quarter,  respecting  the 
manner  of  choosing  representatives  to  constitute  the  meeting  for 
sufferings,  together  with  .  .  .  two  cases  that  came  up  from  Phila- 
delphia quarter  .  .  .  they  were  all  put  by,  and  not  acted  upon, 
except  the  matter  in  relation  to  Leonard  Snowden's  case  which, 
if  I  remember  right,  was  returned  to  the  quarterly  meeting.  It 

2  B 


626  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

seemed  to  be  pretty  generally  understood,  that  the  meeting 
not  in  a  qualified  state,  owing  to  the  interruptions  to  the  harmo- 
ny that  had  taken  place,  to  enter  upon  the  investigation,  or  more 
properly,  the  consideration  of  these  subjects :"  Halliday  Jack- 
son,  2  vol.  Evld.  55.  It  should  be  observed  in  general,  that 
these  subjects  were  not  the  regular  stated  business  of  the  meet- 
ing, but  occasional  or  special.  In  this  remark,  I  do  not  mean  to 
deny  or  detract*  from  their  importance,  or  the  propriety  of  their 
having,  at  a  suitable  season,  the  most  careful  attention ;  but 
simply  to  show  their  real  nature  and  character ;  and  that  to  act 
on  or  omit  them  could  not  touch  any  vital  part  of  the  constitu- 
tion of  this  body.  A  much  more  important  consideration  is,  that 
the  disposition  of  these  subjects,  the  course  which  was  adopted 
and  pursued  in  respect  to  them,  was  the  united  act,  and  according 
to  the  common  wish,  of  all  parties,  of  even  those  by  whom,  or 
through  whose  instrumentality,  they  were  brought  before  the 
meeting.  This  important  fact  is  denied  by  no  witness,  and  is 
expressly  declared  by  more  than  one.  The  statement  of  one  I 
have  just  now  given.  Farther  being  asked,  if  the  subject  from 
the  southern  quarter  was  not  dismissed  at  the  suggestion  of  Ro- 
bert Moore,  a  member  from  that  quarter,  he  answered,  "  When 
that  subject  was  brought  before  the  yearly  meeting,  it  was  draw- 
ing towards  the  close  of  the  week,  and  by  that  time  it  was  evi- 
dent the  yearly  meeting  was  not  in  a  qualified  state  to  act  upon 
any  important  subject;  and'  therefore,  that  subject,  as  well  as 
two  others,  were  dismissed  without  being  much  urged  by  Friends. 
I  have  not  a  clear  recollection,  but  it  seems  to  me  that  Robert 
Moore  did  say  something  about  that  subject  from  the  southern 
quarter."  Being  asked  if  the  subjects  from  Bucks  and  Abington 
were  not  dismissed  at  the  instance  of  John  Comly,  he  answered, 
"I  have  no  recollection  of  who  spoke  first  on  the  subject.  John 
Comly  was  sensible  of  the  state  the  yearly  meeting  was  in ;  and 
I  can  state  what  I  have  frequently  heard  John  Comly  say,  that 
Samuel  Bettle  first  suggested  to  him  the  propriety  of  having 
those  subjects  dismissed,  all  those  subjects  that  came  up  in  the 
reports,  and  wished  John  Comly  to  use  his  influence  with  his 
friends  to  have  those  subjects  from  Bucks  and  Abington  dismiss- 
ed, and  he,  Samuel  Bettle,  would  use  his  influence  with  his 


JULY  TERM,  1S32.  627 

Hendrickson  v.  Decow. 

friends  to  have  that  subject  passed  over  that  was  coming  up  from 
Philadelphia  quarter;  which  subjects,  it  was  apprehended,  would 
produce  a  great  deal  of  excitement  in  the  yearly  meeting,  and 
which  Samuel  Settle  feared  the  consequences  of;  but  how  far 
that  influenced  John  Comly  in  favor  of  putting  off  those  sub- 
jects, I  cannot  say:"  Halliday  Jackson,  2  vol.  Evid.  132. 
Another  witness,  Abraham  Lower,  being  asked  whether  the  pro- 
positions from  Bucks  and  the  southern  quarter,  were  not  disposed 
of  at  the  instance  of  members  from  those  quarters,  respectively, 
and  who,  since  the  separation,  have  joined  that  portion  of  the 
society  with  which  he  was  in  unity,  answered,  "  I  have  no  re- 
collection of  the  members  of  those  quarters  making  such  a  pro- 
position, but  I  should  think  it  quite  probable  :"  Abraham  Lower, 
1  vol.  Evid.  392.  And  the  same  witness,  in  another  place,  tes- 
tified, "  As  that  yearly  meeting  was  acknowledged,  not  qualified 
to  enter  upon  the  matters  brought  up  from  the  quarters,  that  case, 
with  others,  was  concluded  not  to  be  attended  to:"  Abraham 
Lower,  1  vol.  Evid.  373.  Samuel  Bettle  says  he  mentioned  to 
John  Comly,  "Had  you  not  better  withdraw  the  propositions  for 
a  change,  .  .  .  coming  from  Bucks,  Abington,  and  the  southern 
quarter?  He  said  he  thought  so  too,  united  with  me  fully  in 
that  view,  and  said  they  had  better  be  withdrawn,  as  it  was  not 
likely  they  would  ever  be  adopted,  and  would  only  occasion  con- 
fusion and  difficulty.  The  propositions,  when  again  brought 
before  the  meeting,  were  withdrawn  by^  common  consent :" 
Samuel  Bdile,  1  vol.  Evid.  69.  Thomas  Evans  testifies  thus : 
"Those  subjects  were  all  connected  with,  or  had  grown  out  of, 
the  controversy  respecting  the  doctrines  of  Elias  Hicks ;  and  as 
there  was  a  genoral  understanding  that  his  friends  were  about  to 
separate,  and  form  a  society  of  their  own,  those  subjects  were, 
at  their  suggestion  or  by  their  consent,  referred  to  the  meetings 
from  which  they  had  come,  or  suspended  :"  Thomas  Evans, 
1  vol.  Evid.  276.  "  In  the  disposition  of  these  subjects,  there 
was  a  united  conclusion  of  the  meeting,  after  as  full  an  expres- 
sion of  opinion  as  is  usual ;  and  those  that  took  part  in  this  busi- 
ness, some  of  them  now  belong  to  (he  new  meeting,  and  others 
remained  with  the  old  society,  and  participated  with  the  delibe- 


628  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

rations  of  the  meeting  which  led  to  those  conclusions:"  Samuel 
Settle,  1  vol.  Evid.  87.  . 

Thus,  then,  it  appears,  these  omissions  took  place,  certainly  with 
the  consent,  and  probably  at  the  request,  or  upon  the  suggestion, 
of  the  very  persons  who  now  complain.  Under  such  circum- 
stances, this  measure,  by  no  means  unusual — for  Abraham  Lower 
testified  that  he  has  known  cases  brought  to  the  yearly  meeting 
and  laid  over  for  the  consideration  of  the  next — does  not  afford 
ground  for  censure,  much  less  for  annihilation,  and  least  of  all  on 
the  objection  of  those  who,  if  they  did  not  actually  bring  it  about, 
were  consenting  thereto. 

But,  it  is  said,  the  meeting  was  not  in  a  qualified  state  to  enter 
upon  the  consideration  of  these  subjects.  What  then  ?  Was  this 
unqualified  state  peculiar  to  one  portion,  or  common  to  all  ?  Was 
the  meeting  thereby  dissolved?  If  wonted  harmony  ceased  to 
prevail ;  if  the  minds  of  the  members  had  become  so  sensitive  on 
particular  points  that  the  introduction  of  them  would  produce 
agitation  and  excitement,  unfavorable  to  cool,  deliberate  and  dis- 
passionate investigation  and  decision,  it  was  the  part  of  prudence, 
of  Christian  forbearance,  of  enlightened  reason,  of  patience  and 
meekness,  and  of  that  spirit  of  peace  and  submission  which, 
may  I  not  say  without  offence  to  others,  so  eminently  char- 
acterizes this  religious  denomination,  to  wait  in  humble  ex- 
pectation of  the  overshadowing  of  that  Power  who  can  say,  as 
well  to  the  stormy  passions  of  the  human  breast  as  to  the  torrent 
and  the  whirlwind,  "  Peace,  be  still."  But  if  such  a  state  of 
things  be  a  dissolution,  no  human  society  can  be  held  together,  and 
attempts  at  order  and  government,  instead  of  the  means  of  curb- 
ing, and  restraining,  and  controlling  the  wayward  passions  of  man, 
do  but  afford  him  the  opportunity  of  giving  them  extended  and 
unbridled  influence  and  action. 

Besides  these  considerations,  which  are,  I  trust,  sufficient  con- 
clusively to  sustain  the  meeting  in  its  constitutional  existence, 
there  are  some  others,  foun-ded  on  the  acts  and  conduct  of  the 
members,  and  of  the  component  parts  of  the  society  at  large,  or 
the  subordinate  meetings,  which  incontrovertibly  evince  the  ac- 
knowledged existence  of  the  meeting,  and  its  direct  recognition 


JULY  TERM,  1832.  629 

Hendrickson  y.  Decow. 

as  such,  not  only  during   its  session,  but  after  it  had  closed  its 
services  for  the  year. 

.John  Coraly,  and  I  feel  at  liberty  to  refer  to  him,  though  an 
individual,  from  his  eminent  standing  and  distinguished  charac- 
ter, both  private  and  public,  as  a  man  and  as  a  minister,  as  well 
as  from  the  prominent  part  he  bore  in  the  transactions  which 
attended  the  separation  in  this  society, — John  Comly  acted 
throughout  the  meeting,  from  the  commencement  to  the  close,  as 
its  organ,  as  an  officer  of  the  yearly  meeting  of  Philadelphia. 
He  did,  indeed,  request  to  be  excused  from  serving  in  that  capa- 
city. But  the  fact  remains  that  he  did  serve,  and  the  reasons 
he  gave  for  being  inclined  to  withdraw,  strengthen  the  infer- 
ences to  be  deduced  from  the  fact.  Few  men  are,  I  believe, 
more  distinguished  for  purity,  candor,  and  every  other  virtue. 
Did  he  say,  I  cannot  serve  this  meeting,  because  I  am  not  law- 
fully and  rightly  appointed  an  assistant,  and  to  act  as  such  would 
be,  in  me,  usurpation  and  oppression?  Did  he  say,  he  had  been 
recorded  as  assistant  "  in  opposition  to  the  voice  of  the  larger 
part  of  the  meeting?"  Did  he  say,  "the  hedge  was  broken, 
down,"  the  meeting  was  disorganized,  a  revolution  had  occurred, 
there  was  no  longer  a  yearly  meeting,  but  the 'society  was  dis- 
solved into  its  original  elements?  Halliday  Jackson  testifies 
thus:  "The  next  morning,  I  believe,  John  Comly  did  not  take 
his  seat  at  the  table  at  the  opening  of  the  meeting,  as  usual." 
In  this  particular,  perhaps  not  a  very  important  one,  the  witness 
afterwards  corrected  himself,  and  said  he  believed  Comly  took 
his  seat  at  the  table  bv  the  side  of  the  clerk,  when  he  first  came 
into  the  meeting,  (2  vol.  Evid.  132,)  "  but  soon  after,  he  got  up, 
and  made  a  very  forcible  appeal  to  the  yearly  meeting.  I  think 
he  regretted  the  state  and  dilemma  into  which  the'yearly  meeting 
appeared  to  be  brought;  that  there  were  two  parties,  evidently 
two  parties,  that  appeared  to  be  irreconcilable  to  each  other,  and 
therefore  not  qualified  to  proceed  in  the  weighty  concerns  of  a 
yearly  meeting  under  those  trying  circumstances,  and  proposed 
that  the  yearly  meeting  might  adjourn,  and  Friends  endeavor  to 
get  cool  and  quiet  in  their  minds,  and  that  possibly  they  might 
be  favored  to  come  together  again  at  some  other  time,  and  be 
more  in  the  harmony.  .  .  .  And  although  John  Comly  expressed 


630  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

his  uneasiness  at  acting  as  assistant  clerk,  at  the  request  of  some 
of  his  friends,  and  some  of  the  other  party  also,  he  submitted 
again  to  go  to  the  table :"  H.  Jackson,  2  vol.  Evid.  54.  Other 
witnesses  state  the  transaction,  not  differently  though  somewhat 
more  fully.  "  On  third  day  morning,  immediately  after  the 
opening  minute  was  read,  John  Comly  rose  and  stated,  that  he 
had  mentioned  at  the  previous  sitting,  that  he  should  go  to  the 
table  in  condescension  to  the  views  of  his  friends,  and  that  it  watf 
in  that  feeling  that  he  was  now  there;  that  the  meeting  was  di- 
vided into  two  distinct  and  separate  parties,  and  that  under  pre- 
sent circumstances  those  parties  were  irreconcilable ;  that  each  of 
these  parties  was  striving  for  the  mastery,  and  that  if  either  of 
them  gained  the  ascendancy,  it  must  be  to  the  grievance  and 
oppression  of  the  other.  He  therefore  proposed  that  the  meeting 
should  suspend  all  further  business,  and  adjourn ;  but  if  the 
meeting  was  resolved  to  proceed  in  its  business,  at  all  hazards, 
he  could  not  conscienciously  act  as  the  organ  of  a  meeting  made 
up  of  such  conflicting  parties,  and  must  therefore  request  to  be 
permitted  to  retire.  His  proposal  .  .  .  was  but  feebly  supported. 
.  .  .  His  party  strongly  objected  to  his  leaving  the  table,  urged 
his  continuance,  and  that  the  meeting  should  now  proceed  with 
its  business.  John  Comly  then  rose,  and  stated,  that  as  he  found 
the  meeting  was  not  prepared  to  adjourn,  he  was  willing,  after  the 
usual  expression  of  approbation,  to  determine  the  sense  of  the 
meeting  on  his  remaining  at  the  table,  so  to  continue,  and  to  pro- 
ceed with  the  business:"  Thomas  Evans,  1  vol.  Evid.  266.  "He 
took  his  seat,  prepared  to  act,  and  the  business  did  progress,  he 
acting  as  usual,  without  making  any  farther  objection  on  his  part :" 
Samuel  Settle,  1  vol.  Evid.  69. 

Having  seen  the  conduct  of  this  very  active  and  very  useful 
member,  as  he  is  called  by  one  of  the  witnesses,  (Abraham 
Lower,  1  vol.  Evid.  392,)  let  us  briefly  advert  to  that  of  the 
other  members  of  the  meeting,  who  now  belong  to  the  meeting  in 
Green  street. 

Their  urgency  that  John  Comly  should  act  as  assistant  clerk, 
and  that  the  business  of  the  meeting  should  proceed,  has  just 
been  mentioned.  "  The  yearly  meeting  of  1827,  was  entirely 
conducted  as  it  had  been  on  previous  occasions :"  Samuel  Bet" 


JULY  TERM,  1832.  631 


Hendrickson  v.  Decow. 


tie,  1  vol.  Evid.  94.  "During  that  meeting,  persons  who  have 
since  joined  the  other  meeting,  were  appointed  on  committees, 
and  took  an  active  part  in  the  concerns  of  the  meeting  through- 
out:" Ibid.  In  the  afternoon  of  the  first  day's  meeting,  some 
of  the  friends  of  John  Comly  "  expressed,  that  they  thought  the 
business  of  the  meeting  had  better  go  forward  :"  Thomas  Evans, 
1  vol.  Evid.  266.  "During  all  the  remaining  sittings  of  the 
yearly  meeting,  he  (John  Comly)  and  his  friends  continued 
their  attendance,  took  part  in  its  deliberations,  assented  or  dis- 
sented from  its  conclusions,  as  opinion  led  them,  and  addressed 
it  as  the  yearly  meeting  of  Philadelphia :"  Thomas  Evans,  1  vol. 
Evid.  267.  "  During  the  last  hour  of  the  sitting,  all  the  proceed- 
ings were  read  over,  as  is  usual  at  the  close  of  the  yearly  meeting ; 
no  objections  were  made  by  any  one,  to  any  part  of  the  minutes  ; 
the  concluding  minute  was  also  read,  adjourning  the  meeting  until 
the  next  year,  at  the  usual  time  and  place,  if  the  Lord  permit." 
This  conclusion  is  the  form  common  on  such  occasions.  "After 
this  minute  was  read,  a  considerable  pause  ensued ;  there  was  no 
objection  made  to  it,  and  Friends  separated  from  each  other  in 'the 
usual  manner :"  Samuel  Settle,  I  vol.  Evid.  70 ;  Thomas  Evans,  I 
vol.  Evid.  268.  "Those  who  have  since"  joined  the  Green  street 
meeting,  "  were  generally  present  at  the  time  of  the  adjournment. 
The  yearly  meeting  was  as  large  and  numerous  at  the  last  sitting, 
as  at  any  sitting  during  the  week :"  Joseph  Whitall,  1  vol.  Evid. 
218. 

One  of  the  transactions  of  this  meeting  deserves,  in  the  present 
connection,  particular  notice.  "  There  was  one  matter  before 
the  meeting  which  was  of  a  humane  and  benevolent  character, 
that  Friends,  perhaps,  of  both  parties,  were  pretty  much  united 
in  :"  Halliday  Jackson,  2  vol.  Evid.  56.  "  That  was  to  raise 
three  thousand  dollars  to  aid  our  brethren  in  North-Carolina,  in 
removing  out  of  that  state  many  hundred  colored  people,  eight 
or  nine  hundred  of  them  at  least,  who  were  under  the  care  of 
the  Carolina  yearly  meeting,  and  whose  liberties  were  in  jeopar- 
dy, unless  they  removed  out  of  the  state.  This  sum  it  was  pro- 
posed should  be  raised  by  the  different  quarterly  meetings,  in  the 
usual  proportions.  This  was  entirely  united  with  ;  not  a  single 
dissentient  voice;  a  great  many  expressing  their  views,  and  a 


632  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

minute  was  made,  directing  the  quarterly  meetings  to  raise  the 
money  and  pay  it  to  Elias  Yarnall,  the  treasurer  of  the  yearly 
meeting.  The  quarterly  meetings  that  compose  the  yearly  meet- 
ing, all  assembled,  and  in  conformity  with  the  direction  contained 
in  the  extract  from'' the  yearly  meeting,  raised  their  quotas  of  the 
three  thousand  dollars,  and  paid  it  to  Elias  Yarnall,  the  treas- 
urer :"  Samuel  Settle,  1  vol.  End.  70.  Chesterfield  preparative 
meeting  bore  its  wonted  part.  This  transaction  is  of  an  unequivo- 
cal character.  The  resolve  was  an  act,  not  of  private  or  individual 
benevolence,  but  of  the  meeting  in  its  collective  capacity.  The 
recommendation,  by  the  extract,  was  such  as  that  meeting  alone 
could  perform.  All,  we  are  told,  united  in  it.  Not  a  dissentient 
voice.  It  was  received  by  the  several  quarterly  meetings  as  an 
act  of  the  yearly  meeting,  and  carried  into  effect  as  such,  and  the 
moneys  were  transmitted  to  the  treasurer;  thereby  making,  after 
the  close  of  the  yearly  meeting,  a  direct  recognition  of  its  existence 
and  authority.  The  effect  of  these  circumstances  cannot  be  weak- 
ened by  the  "  humane  and  benevolent  character  "  of  this  work  of 
chafity.  It  was  indeed  proof  of  a  noble  a'nd  munificent  spirit.  But 
suppose  the  general  assembly  of  the  Presbyterian  church,  or  the 
Protestant  Episcopal  convention,  had  sent  missives  or  extracts  to 
the  quarterly  meetings,  enjoining  the  donation,  and  to  make  their 
treasurers  the  channels  of  conveyance,  would  the  call  have  been 
obeyed  ? 

I  do  not  pause  to  answer,  but  proceed  to  the  consideration  of 
another  of  the  heads  into  which  this  cause  has  been  divided,  the 
designs,  plans,  views,  feelings  and  acts  of  individual  members  of 
the  society;  and  under  this  head  I  shall  notice,  so  far  as  I  think 
it  necessary,  the  conduct  of  subordinate  meetings,  and  of  what  has 
been  called  the  dominant  party. 

And  here  I  make  some  general  remarks,  which  indeed  in  my 
judgment,  furnish  an  answer,  a  decisive  answer,  to  many  of  the 
conclusions  which  have  been  drawn  or  suggested  froai  the  facts 
which,  on  these  points  of  the  case,  appear  in  evidence. 

First.  Our  concern  is  with  the  yearly  meeting  in  its  collective 
capacity.  Our  purpose  is  to  ascertain  whether  that  body  holds 
or  has  ceased  to  hold,  a  legal  existence ;  whether  the  body  which 
met  on  Arch  street,  and  continued  and  closed  its  session  there,  in 


JULY  TERM,  1832.  633 

Hendrickson  v.  Decow. 

April,  1827,  was  the  constitutional  yearly  meeting  of  the  society? 
Whether  the  yearly  meeting  then  assembled,  performed  its  func- 
tions and  adjourned  ?  or  whether  that  assemblage,  at  its  open- 
ing, in  its  progress,  or  at  its  conclusion,  ceased  to  be  the  ancient 
and  legitimate  yearly  meeting?  Whether  the  venerable  edi- 
fice remained,  or  its  place  exhibited  only  a  deplorable  pile  of 
ruins?  ' 

Second.  As  such,  then,  are  our  concern  and  purpose,  we  have 
little  to  do  with  the  causes  of  division  and  separation,  about 
which  so  much  has  been  said  and  written  in  the  course  of  this 
cause,  or  with  the  division  and  separation,  except  so  far  as  they 
may  operate  on  the  legal  existence  of  the  assemblies  of  this  so- 
ciety. A  separation  has,  indeed,  taken  place.  Those  who  for- 
merly offered  their  sacrifices  on  a  common  altar,  now  no  longer 
worship  or  commune  together.  Many  who  once  went  up  to  the 
ancient  temple,  have  left  it,  and  go  up  to  another  mount.  They 
had  the  right  to  do  so.  Our  civil  and  religions  liberty,  whereof 
we  have  such  just  reason  for  congratulation  and  gratitude,  left 
them  free  from  all  restraint,  save  conscience  and  the  divine  law. 
We  are  not  here  to  approve  or  condemn  them,  nor  to  inquire  into 
their  motives,  nor  to  estimate 'their  strength,  or  their  purity,  or 
their  consistency  with  the  light  of  truth,  whereby  all  profess  to 
be  guided.  I  wish  to  judge  no  "man's  servant.  To  his  own 
master  he  standeth  or  falleth."  I  hope  to  be  able  to  continue  and 
close  this  investigation,  without  any  inquiry «into  religious  faith  or 
opinions.  Not  that  I  doubt  the  power  of  this  court.  For  while 
I  utterly  disclaim  the  idea  that  this  court,  or  any  court,  or  any 
human  power,  has  a  right  to  enforce  a  creed,  or  system  of  doc- 
trine or  belief,  on  any  man,  or  to  require  him  to  assent  to  any 
prescribed  system  of  doctrine,  or  to  search  out  his  belief  for  the 
purpose  of  restraining  or  punishing  it  in  any  temporal  tribunal,  I 
do  most  unqualifiedly  assert  and  maintain  the  power  and  right  of 
this  court,  and  of  every  court  in  New-Jersey,  to  ascertain,  by 
competent  evidence,  what  are  the  religious  principles  of  any  man 
or  set  of  men,  when,  as  may  frequently  be  the  case,  civil  rights 
are  thereon  to  depend,  or  thereby  to  be  decided.  In  a  greater  or 
less  degree  it  is  done  daily.  Who  avail  themselves  of  it  more 
frequently  than  the  society  of  Friends,  when,  on  the  ground  of 


634  CASES  IN  CHANCERY. 


Hendrickson  v.  Decow. 


religious  faith,  they  claim  and  enjoy  an  exemption  from  the  use 
of  an  oath  in  our  courts  of  justice?  How  far,  then,  this  sepa- 
ration may  have  been  proper,  or  whether  the  causes  of  it  will 
stand  the  scrutiny,  which,  in  the  great  day  of  account,  they 
must  undergo,  we  are  not  to  resolve.  Its  effect  on  this  society, 
and  the  ancient  assembly,  is  the  outermost  bound  of  our  in- 
quiry. 

Third.  Inasmuch  as  our  research  properly,  and  almost  exclu- 
sively, relates,  as  I  have  endeavored  to  show,  to  the  yearly  meet- 
ing in  its  collective  capacity,  it  is  of  little  worth  to  inquire  into 
the  plans,  designs,  or  views  of  individuals,  or  even  the  acts  of 
inferior  bodies,  since  these,  however  incorrect,  or  hostile,  or  in- 
defensible, can  have  no  great  influence  on  our  main  pursuit ;  for 
if  individuals  were  ambitious,  not  lowly,  arrogant,  not  humble, 
domineering,  not  submissive,  and  were  destitute  of  the  mild  and 
forbearing  spirit  of  Christianity ;  if  a  party  had  sprung  up,  re- 
solved, as  was  said,  "to  rule  or  to  rend;"  if  even  monthly  or 
quarterly  meetings  had  violated  the  wholesome  rules  of  common 
discipline,  it  by  no  means  follows  that  the  bonds  of  the  society 
were  broken,  their  compact  dissolved,  their  discipline  at  an  end, 
their  constitution  destroyed,  and  their  existence  annihilated. 
Such  a  government  is  a  mockery,  a  pretence.  It  has  not  the 
consistency  of  even  the  mist  of  the  morning.  The  plain  and 
irresistible  truth,  that  such  a  government,  so  wholly  unadapted 
to  the  condition  of  mankind,  could  not  exist,  abundantly  proves 
that  such  principles  are  unsound.  The  basis  of  all  government, 
is  the  truth  taught  by  every  page  of  history,  that  turbulent  pas- 
sions will  arise,  that  acts  of  violence  will  be  committed  ;  and  the 
purpose  of  government  is  to  control,  to  regulate,  to  repress,  to 
remedy  such  passions  and  conduct.  If  otherwise,  the  edifice  is 
built  of  such  stuff  as  dreams  are  made  of,  and  is  as  unsubstan- 
tial and  as  little  to  be  valued  as  a  castle  in  the  air.  If  the  state 
of  Georgia  should  disregard  the  decision  of  the  federal  judiciary, 
or  even  resist  the  executive  power  of  the  United  States,  is  the 
constitution  dissolved?  If  designs  exist  in  South-Carolina  "to 
rule  or  to  rend,"  our  government,  surely,  is  not  therefore  anni- 
hilated. It  may  bo  said,  these  are  but  parts,  small  parts  of 
the  Union.  Is  it  not  in  like  manner  said,  the  adherents  of  the 


JULY  TERM,  1832.  635 

Hendrickson  v.  Decow. 

Arch  street  meeting  are  a  minority,  a  small  minority?  Gough,  in 
his  history,  makes  this  judicious  and  appropriate  remark:  "The 
independency  claimed  by  the  discontented  party,  is  incompatible 
with  the  existence  of  society.  Absolute  independency  in  society 
being  a  contradiction  in  terms:"  3  Gough's  Hist.  24. 

This  view  of  the  subject  would,  I  think,  excuse  any  examination 
in  detail ;  yet  to  see  these  principles  in  their  practical  application, 
as  well  as  farther  to  illustrate  the  matter,  and  to  leave,  if  possible, 
nothing  without  notice,  which  is  urged  as  bearing  on  the  result,  I 
shall  briefly  advert  to  some  of  the  prominent  topics  of  dissatisfac- 
tion and  complaint. 

"  The  most  prominent  cause  of"  the  division  in  the  society, 
"of  a  public  nature,  I  consider  to  be,"  says  one  of  the  witnesses, 
(Abraham  Lower,  1  vol.  Evid.  354,)  "  the  public  opposition  or 
disrespect,  manifested  by  the  members  of  Pine  street  monthly 
meeting,  by  the  agency  and  influence  of  Jonathan  Evans,  in 
breaking  up  the  men's  meeting,  or  closing  it,  whilst  Elias  Hicks 
was,  with  the  consent  and  approbation  of  that  monthly  meeting, 
engaged  in  the  women's  department  in  the  prosecution  of  his  re- 
ligious concern."  The  occurrence  took  place  "between  1819 
and  1821  :"  Ibid.  Now,  if  a  prominent  member  of  that  meet- 
ing was  guilty  of  rudeness  or  impropriety,  it  is  plain,  that  he 
should  have  been  individually  dealt  with,  brought  to  confess  his 
error,  or  disowned.  If  the  meeting,  as  such,  acting  from  his 
example,  or  under  his  influence,  were  guilty  of  censurable  dis- 
respect, "such  meeting  ought"  to  have  been  required  "to  render 
an  account  thereof."  I  use,  here,  the  words  of  the  book  of  dis- 
cipline, the  meaning  of  which  is  well  understood.  But  it  is 
claiming  too  much  to  assert,  that  the  society  is  thereby  rent 
asunder,  when  no  measures  to  punish  the  offenders  were  ineffec- 
tually essayed,  when  years  have  shed  their  healing  influence  over 
it;  or  that  the  religious  rights  and  privileges  of  all  the  other 
meetings  and  members,  within  a  large  district  of  territory,  have 
been  jeoparded,  and  the  subsequent  sessions  of  the  yearly  meeting 
been  unwarranted,  and  their  acts  usurpation  and  oppression. 

Another  complaint  against  individuals,  and  against  the  meet- 
ing for  sufferings,  is  called  "an  insidious  effort  to  palm' a  creed 
upon  a  society  which  never  had  a  creed :"  Abraham  .Lower, 


636  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

1  vol.  Evid.  369.  The  affair  is  thus  represented  by  the  witness 
who  uses  the  expression  I  have  quoted: — "The  minds  of  some 
of  the  members  of  that  meeting  appeared  to  be  anxious  that 
something  should  be  done  to  keep  the  minds  of  the  members  of 
the  society  from  imbibing  sentiments  which  seemed  to  be  grow- 
ing common  among  its  members.  The  suggestion  was  made  to 
get  up  a  pamphlet,  to  be  composed  of  extracts  from  the  writings 
of  our  early  Friends  ;  and  from  what  some  of  us  saw  of  the  dis- 
position of  those  persons,  who  have  since  denominated  themselves 
Orthodox,  .  .  .  we  felt  afraid  that  something  was  about  to  be  got 
up,  calculated  to  trammel  our  conscientious  rights,  and  when  the 
pamphlet  was  prepared,  a  small  number  of  us  expressed  our  dis- 
satisfaction with  the  undertaking,  and  with  the  matter  of  the 
pamphlet,  fearing,  that  in  the  hands  of  arbitrary  men,  a  con- 
struction might  be  given  to  some  of  the  views  in  that,  pamphlet, 
that  would  abridge  the  right  of  private  judgment.  .  .  .  There  were, 
I  think,  ten  thousand  of  them  printed,  .  .  .but  it  was  detained, 
not  published.  And  when  the  minutes  of  the  meeting  for  suf- 
ferings canje  to  be  read,  as  usual,  in  the  yearly  meeting,  to  my 
surprise,  that  pamphlet  appeared  to  be  recorded  on  the  minutes, 
and  when  it  was  read,  the  yearly  meeting  appeared  very  much 
dissatisfied  with  it.  It  was  proposed,  and  generally  united  with, 
and  so  expressed,  that  it  should  be  expunged  from  the  minutes 
of  the  meeting  for  sufferings.  ...  It  was  finally  left,  with  the 
conclusion  that  it  should  not  be  published.  It  was  considered  in 
the  light  of  a  creed,  and  that  by  this  course  of  leaving  it  on  the 
minutes  of  the  meeting  for  sufferings  .  .  .  that  when  the  minutes 
should  be  read  in  the  yearly  meeting,  and  that  as  a  part  of  them, 
that  it  would  be  adopted  by  society,  foisted  upon  them  in  that 
insidious  way :"  Abraham  Lower ,  1  vol.  Evid.  368.  On  the 
other  side,  the  following  representation  of  this  affair  was  made: 
"  It  has  been  the  custom  of  the  society,  whenever  any  of  its  doc- 
trines or  testimonies  are  misrepresented  in  works  that  are  pub- 
lished, to  endeavor  to  induce  the  editors  of  those  works  to  give 
the  views  that  Friends  hold  in  respect  to  the  doctrines  thus  mis- 
represented. In  the  year  1822,  there  was  a  discussion  in  a  pub- 
lic paper,  printed  at  Wilmington,  conducted  under  the  signa- 
tures of  Paul  and  Amicus;  Paul  attacking  Friends,  and  Amicus 


JULY  TERM,  1832.  637 

Hendrickson  v.  Decow. 

speaking  in  their  behalf,  and  in  a  manner,  too,  which  showed 
that  he  was  speaking  for  the  society,  clearly.  After  this  discus- 
sion had  progressed  for  a  considerable  time,  Amicus  avowed  doc- 
trines, as  part  of  the  Christian  faith,  which  we  could  not  accord 
with ;  they  appeared  to  be  of  a  socinian  character,  at  least. 
These  essays  being  about  to  be  reprinted  in  form  of  a  book,  .  .  . 
the  meeting  for  sufferings,  in  the  regular  order  of  their  proceed- 
ings did  .  .  .  notice  it,  by  appointing  a  committee.  .  .  .  The  com- 
mittee pursued  the  usual  course,  .  .  .  prepared  a  statement  of  what 
were  the  views  of  Friends,  .  .  .  making  extracts  from  various  ap- 
proved authors.  The  meeting  united  with  the  report  of  the  com,- 
mittee,  and  made  a  minute  on  the  subject.  The  editor  did  pub- 
lish the  minute  in  his  paper,  but  declined  saying  any  thing  on 
the  subject  in  his  book.  The  meeting  were  under  the  necessity 
of  publishing  these  extracts  themselves,  and  did  print  an  edition 
of  it.  In  the  yearly  meeting  of  1823,  when  the  minutes  of  the 
meeting  for  sufferings  were  read,  considerable  objections  were 
made  to  that  part  of  the  proceedings.  .  .  .  The  excitement  being 
considerable,  the  meeting  adjourned  until  the  nex>t  morning. 
When  the  meeting  assembled  the  next  morning,  it  was  proposed 
that  the  extracts  should  be  stricken  off  the  minutes  of  the  meet- 
ing for  sufferings ;  objection  was  made  to  that,  on  the  ground 
that  it  would  be  a  disavowal  of  the  doctrines  held  by  Friends, 
these  extracts  being  taken  from  the  writings  of  approved  Friends." 
...  It  was  "proposed  to  them  to  avoid  both  difficulties,  by  sim- 
ply suspending  the  publication,  not  taking  it  off  the  minutes,  and 
not  circulating  the  pamphlets,  but  leaving  the  subject.  This  pro- 
position was  finally  acquiesced  in,  and  the  business  so  settled  :" 
Samuel  Settle,  I  vol.  Evid.  72.  How  far  this  explanation  may 
serve  to  show  that  the  measure  was  in  conformity  with  ancient 
custom,  and  called  for  by  the  exigency  of  the  occasion  ;  or  how 
far  it  was  an  insidious  effort  to  impose  a  creed  ;  or  how  far  the 
fear  was  well  founded  that  an  attempt  was  made  to  trammel  con- 
eciencious  rights,  or  to  abridge  the  right  of  private  judgment,  I 
shall  not  undertake  to  decide.  It  is  enough  to  say,  that  if  such 
a  design  existed,  if  such  an  effort  was  made,  the  design  was 
frustrated,  the  effort  was  defeated  ;  and  the  authors  of  it  met  with 
a  just,  though  silent  rebuke.  But  the  attempt  did  not  impair  the 


638  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

solidity  of  the  yearly  meeting  to  which  it  was  proposed.  I  can- 
not believe  that  the  proposal,  by  a  committee  of  congress,  of  an 
unconstitutional  or  oppressive  law,  would  annihilate  that  body, 
or  abrogate  the  constitution.  The  wildest  and  most  visionary 
theorists  would  not,  I  believe,  venture  on  such  bold  and  untenable 
ground. 

This  matter  of  religious  faith  and  doctrine,  of  a  creed,  has 
directly  or  indirectly  filled  up  a  large  portion  of  the  volumes  of 
evidence  before  us ;  was  the  subject  of  many  remarks  in  the  ar- 
guments of  the  counsel  at  the  bar  of  this  court;  has  been  the 
cause  of  much  anxiety  and  alarm;  and  misunderstandings  in 
respect  to  it,  have,  I  doubt  not,  had  great  influence  in  bringing 
about  the  lamented  rupture  in  this  most  respectable  society.  I 
fear  the  matter  has  been  greatly  misunderstood,  if  not  greatly 
misrepresented.  This  society  has,  and  from  the  nature  of  things 
must  have,  its  faith  and  doctrines,  its  distinguishing  faith  and 
doctrines.  They  would,  unhesitatingly,  repudiate  the  tenets  of 
Confucius,  of  Bramah,  or  of  Mohammed.  They  believe  "  in 
Christ  and.  him  crucified."  They  bear  both  public  and  private 
testimony  of  their  faith.  They  have  repeatedly  declared  it,  and 
published  it  to  the  world.  They  have  a  confession  of  faith,  and 
a  catechism.  A  declaration  of  faith  was  issued  on  behalf  of  the 
society  in  the  year  1893 — was  approved  by  the  morning  meet- 
ing of  London,  and  published  by  the  yearly  meeting  of  Phila- 
delphia, in  or  about  1730.  It  is,  I  suppose,  the  same  which  is 
to  be  found  in  Se well's  History,  (2  vol.  472.)  It  purports  to  be 
"  a  declaration  of  what  our  Christian  belief  and  profession  has 
been  and  is,"  and  contains  an  exposition  of  belief,  in  respect  to 
Jesus  Christ,  his  suffering,  death,  and  resurrection,  and  the  ge- 
neral resurrection  of  the  dead,  and  the  final  judgment.  Sewell, 
(2  vol.  483,)  gives  what  he  calls  "a  confession  of  faith,"  which 
was,  by  George  Whitehead  and  others,  presented  to  parliament 
in  December,  1693,  and  begins  thus:  "Beit  known  to  all,  that 
we  sincerely  believe  and  confess."  The  yearly  meeting,  as  early 
as  1701,  by  their  direction  and  at  their  expense,  circulated  Bar- 
clay's Apology,  and  his  Catechism  and  Con'fession  of  Faith,  as 
containing  the  doctrines  and  tenets  of  the  society  of  Friends. 
What  is  a  creed,  but  an  exhibition  of  faith  and  doctrine  ?  Why 


JULY  TERM,   1832.  639 

Hendrickson  v.  Decow. 

then,  should  the  tocsin  now  be  sounded  among  a  people,  who,  a  well 
informed  member  tells  us,  have  more  frequently  than  any  other 
religious  community,  exhibited  to  the  world  thoir  principles  and 
their  faith  ?  Were  the  early  Friends  less  anxious  for  the  cause  of 
truth,  less  jealous  of  encroachment  on  their  religious  freedom,  less 
willing  to  bear  testimony  against  error  and  to  suffer  for  their  testi- 
mony, less  prompt  to  discern  insidious  efforts,  less  fearful  of  at- 
tempts to  trammel  conscience  or  abridge  the  right  of  private  judg- 
ment ?  The  observations  of  Robert  Barclay,  in  a  treatise  on  church 
government,  published  under  the  sanction  of  the  society,  and  several 
times  printed  by  the  yearly  meeting  of  Philadelphia,  ( Thomas  Evans, 
1  vol.  Evid.  304,)  are  fraught  with  so  much  good  sense,  practical 
wisdom,  and  genuine  piety,  that  they  cannot  be  too  frequently 
pondered  by  all,  of  every  name  or  sect,  who  feel  an  interest  in  the 
cause  of  religious  truth  and  ordsr.  "  Whether  the  church  of 
Christ  have  power,  in  any  cases  that  are  matters  of  conscience,  to 
give  a  positive  sentence  and  decision,  which  may  be  obligatory 
upon  believers.  I  answer  affirmatively,  she  hath  ;  and  shall  prove 
it  in  divers  instances,  both  from  scripture  and  reason  ;  'for,  first,  all 
principles  and  articles  of  faith  which  are  held  doctrinally,  are.  in 
respect  to  those  that  believe  them,  matters  of  conscience.  .  .  . 
Now,  I  say,  we  being  gathered  into  the  belief  of  certain  principles 
and  doctrines,  without  any  constraint  or  worldly  respect,  but  by 
the  mere  force  of  truth  on  our  understanding,  and  its  power  and 
influence  upon  our  hearts,  these  principles  *and  doctrines,  and  the 
practices  necessarily  depending  upon  them,  are,  as  it  were,  the 
terms  that  have  drawn  us  together,  and  the  bond  by  which  we 
became  centered  into  one  body  and  fellowship,  and  distinguished 
from  others.  Now,  if  any  one  or  more,  so  engaged  with  us,  should 
arise  to  teach  any  other  doctrine  or  doctrines,  contrary  to  these 
which  were  the  ground  of  our  being  one,  who  can  deny  but  the 
body  hath  power,  in  such  a  case,  to  declare,  this  is  not  accord- 
ing to  the  truth  we  profess,  and,  therefore,  we  pronounce  such 
and  such  doctrines  to  be  wrong,  with  which  we  cannot  have 
unity,  nor  yet  any  more  spiritual  fellowship  with  those  that  hold 
them.  .  . ..  Now,  this  cannot  be  accounted  tyranny  and  oppres- 
sion. .  .  .  Were  such  a  principle  to  be  received  or  believed,  that 


640  CASES  IN  CHANCERY. 

Ilendrickson  v.  Decow. 

in  the  church 'of  Christ  no  man  should  be  separated  from,  no  man 
condemned  or  excluded  the  fellowship  and  communion  of  the  body, 
for  his  judgment  or  opinions  in  matters  of  faith,  then  what  blas- 
phemies so  horrid,  what  heresies  so  damnable,  what  doctrines  of 
devils,  but  might  harbor  itself  in  the  church  of  Christ?  What 
need  then  of  sound  doctrine,  if  no  doctrine  make  unsound  ?  .  .  . 
Where  a  people  are  gathered  into  the  belief  of  the  principles  and 
doctrines  of  the  gospel  of  Christ,  if  any  of  that  people  shall  go 
from  their  principles,  and  assert  things  false,  and  contrary  to  what 
they  have  already  received,  such  as  stand  and  abide  firm  in  the 
faith  have  power  ...  to  separate  from  such,  and  to  exclude  them 
from  their  spiritual  fellowship  and  communion  :"  Barclay's  Anar- 
chy of  the  Haulers,  53,  &c.  On  the  present  occasion  it  is  not  my 
purpose,  because  for  the  determination  of  the  controversy  before 
us  I  do  not  find  or  deem  it  necessary,  to  inquire  whether  the 
society  of  Friends  can,  or  may,  or  will,  according  to  their  rules, 
disown  a  member  who  holds  unsound  or  heretical  doctrines,  who 
should  disavow  all  the  essential  principles  of  Christianity,  and  pro- 
fess to  believe  that  Jupiter  and  Mars  and  Apollo,  and  the  fabled 
deities  of  Olympus,  are  the  true  gods,  or  that  the  "  blood  of  bulls 
and  of  goats  should  take  away  sins;"  but  simply  to  show  that  the 
society,  as  such-,  have  their  faith,  their  principles,  their  doctrines, 
their  peculiar  faith,  their  distinctive  principles,  their  characteristic 
doctrines,  without  which  a  man  may  be  a  heathen,  a  mohammedan, 
or  even  a  Christian,  but  cannot  be  one  of  the  people  called  Quakers. 
Can  I  mistake  in  this,  when  I  read  such  a  passage  as  I  have  quoted 
from.  Barclay,  a  standard  of  the  society,  acknowledged,  received, 
revered  as  such  ?  What  is  his  word  just  named,  what  is  his 
"Apology,"  but  an  exposure  of  doctrine,  of  principle,  of  faith,  of  the 
doctrine,  principle  and  faith  of  the  Friends,  avowed  by  them,  pub- 
lished by  them,  resorted  to  by  them  as  their  light  and  guide  in 
the  hours  of  darkness,  and  doubt,  and  difficulty ;  in  those  try- 
ing hours,  which  corne  to  them  as  they  come  to  all  men  of  reli- 
gious feeling,  when  the  light  within  needs  oil,  and  the  flickering 
flame  of  hope  to  be  made  steady  and  brilliant.  Can  I  mistake, 
when  the  book  of  discipline,  with  uncommon  solicitude,  requires 
each  preparative  meeting  of  ministers  and  elders,  no  less  than 


JULY  TERM,  1832.  641 


Hendrickson  v.  Decow. 


three  times  in  every  year,  to  certify  to  its  quarterly  meeting,  in 
answer  to  one  of  the  queries,  "  whether  ministers  are  sound  in 
word  and  doctrine?"  Soundness  is  a  relative  term,  meaning  free- 
dom from  error  and  fallacy,  and  necessarily  requiring  some  stand- 
ard whereby  the  word  and  the  doctrine  may  be  judged.  The 
doctrine  to  be  sound,  must  be  conformable  to  some  standard  ; 
and  does  not  the  query,  then,  assert  that  a  standard  exists  in  this 
church;  and  that  thereby  the  doctrine  of  the  minister  may,  by 
his  fellow  man,  be  compared  and  tried?  If,  however,  I  may  mis- 
take in  thus  reverting  to  these  venerated  sources,  let  us  for  a 
moment  recur  to  the  evidence.  Abraham  Lower,  (1  vol.  Evid. 
369,)  says,  in  connection  with  this  subject,  "  The  society,  be- 
lieving now  as  they  did  in  the  first  foundation  of  it,  that  the  bond 
of  union  by  which  it  was  bound  together,  was  and  is,  'the  life 
of  righteousness.'"  Is  not  here  a  direct  assertion,  that  there  is 
a  belief,  and  a  belief  not  merely  of  individuals,  but  of  the  so- 
ciety as  such  ?  And  he  refers  for  an  exposition,  published  and 
expressed,  to  the  author  and  the  book  from  which  I  have  just 
quoted.  In  this  connection,  I  recur  farther,  to  the  first  document 
emanating  from  Green  street,  dated  fourth  month,  1827.  "Doc- 
trines held  by  one  part  of  the  society,  and  which  we  believe  to 
be  sound  and  edifying,  are  pronounced  by  the  other  party  to  be 
unsound  and  spurious."  Now,  I  may  be  allowed  to  ask,  why 
speak  of  doctrines,  if  the  society,  as  such,Jias  no  concern  with 
them?  How  are  doctrines  ascertained  to  be  unsound  and  spuri- 
ous, or  sound  and  edifying,  if  there  be  no  standard  of  faith  and 
doctrine,  no  creed  ?  Why  should  this  difference  or  departure  from 
a  sound  belief,  be  made  a  subject  of  complaint?  How  is  such  a 
denunciation  to  be  reconciled  with  the  alarm  at  a  creed,  or  the 
dreaded  attempt  to  control  conscience  and  abridge  the  right  of 
private  judgment? 

The  meeting  for  sufferings,  by  the  rejection  of  certain  persons 
appointed  by  the  southern  quarter  as  representatives,  are  charged 
to  have  given  "reason  to  apprehend  that  they  were  determined 
to  control  the  operations  of  society  according  to  their  wills," 
and  to  have  furnished  "  evidence  of  their  having  dissolved  the 
compact,  and  so  far  as  their  own  influence  extended,  and  their 

2  s 


642  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

own  acts  could  extend,  separated  itself  from  the  society :"  Abra- 
ham Lower ',  1  vol.  Evid.  370. 

The  meeting  for  sufferings,  is  a  subordinate  department  for 
the  business  of  this  society,  and  especially  to  excercise  care  during 
the  intervals  between  the  sessions  of  the  yearly  meeting.  If  this 
body  did  improperly  reject  the  representatives;  if  in  this  respect 
they  violated  the  discipline,  it  is  very  obvious  that  their  act,  their 
unconstitutional  act,  could  impart  no  censure  whatever  to  the 
yearly  meeting,  much  less  destroy  its  existence.  But  the  design, 
the  motive,  the  ambitious  and  domineering  spirit,  which  induced 
this  conduct,  these  are,  we  are  told,  the  consuming  fires.  The 
state  of  the  case  is  shortly  thus  : — The  meeting  for  sufferings  is 
composed  of  twelve  Friends  appointed  by  -the  yearly  meeting, 
and  also  of  four  Friends  chosen  out  of  each  of  the  quarterly  meet- 
ings; and  the  book  of  discipline  provides  that  "in  case  of  the 
decease  of  any  Friend  or  Friends,  nominated  either  by  the  year- 
ly meeting  or  quarterly  meetings,  or  of  their  declining  or  neg- 
lecting their  attendance  for  the  space  of  twelve  months,  the  meet- 
ing for  sufferings,  if  it  be  thought  expedient,  may  choose  others 
in  his  or  their  stead  to  serve  till  the  time  of  the  next  yearly 
meeting,  or  till  the  places  of  those  who  have  represented  the 
quarterly  meetings  shall  be  supplied  by  new  appointments:" 
Book  of  Discipline,  55.  In  the  year  1826,  the  southern  quar- 
terly meeting  resolved  to  release  two  of  the  persons  who  were 
then  sitting  as  members  of  the  meeting  for  sufferings  under  their 
appointment,  and  appointed  others.  The  meeting  were  of  opi- 
nion that  such  a  measure  was  not  contemplated  by  the  disci- 
pline; that  the  quarter  had  a  right  to  fill,  but  not  to  create  va- 
cancies; and  that  the  only  case  which  constituted  a  vacancy  and 
called  for  a  new  appointment,  was  death,  resignation,  or  neglect 
of  attendance;  neither  of  which  then  existed.  The  meeting 
for  sufferings  appointed  a  committee  to  confer  with  the  quarterly 
meeting.  The  latter  adhered  to  their  resolution.  The  case  was 
forwarded  to  the  yearly  meeting  of  1827  for  their  care,  and  was 
one  of  those  which,  as  already  mentioned,  were  postponed  : 
Exhib.  No.  47,  2  vol.  Evid.  477.  Here,  then,  appears  to  fcave 
been  a  difference  of  opinion,  on  the  construction  of  a  clause  in 
the  book  of  discipline,  respecting  the  power  of  Jhe  quarterly  meet- 


JULY  TERM,  1832.  643 


Hendrickson  v.  Decow. 


ing.  Without  undertaking  to  decide  which  is  correct,  there  was 
certainly  room  enough  for  a  diversity ;  and  I  can  see  no  reason, 
either  in  the  relation  of  the  witnesses,  or  in  an  examination  of  the 
controverted  clause,  to  doubt  that  the  opinion  entertained  by  the 
meeting  for  sufferings,  was  honest  and  sincere,  and  not  feigned 
or  fraudulent;  more  especially  if,  as  alleged,  it  was  sanctioned 
by  a  practice  of  seventy  years,  coeval  with  the  existence  of  that 
meeting.  Now  an  honest  diversity  of  opinion  as  to  constitutional 
powers,  could  not  "dissolve  the  compact;"  nor  could  the  act  of 
the  meeting,  in  sending  a  committee  to  confer  with  the  quarter, 
nor  even  their  omission  to  yield  to  the  determination  of  the  quar- 
ter, until  the  matter  could  be  investigated  and  decided  by  the  ulti- 
mate and  competent  tribunal,  the  yearly  meeting.  But  in  what- 
ever light  we  may  view  this  matter,  it  is,  as  already  observed,  the 
act  of  the  meeting  for  sufferings,  not  of  the  yearly  meeting.  The 
course  pursued  by  the  latter,  and  the  reason  of  that  course,  have 
been  already  mentioned  and  considered.  If,  indeed,  "this  circum- 
stance "  had  produced,  as  is  said  by  one  of  the  witnesses,  (HaUiday 
Jackson,  2  vol.  Evid.  48,)  "  as  great  a  sensation  throughout  the 
society,  as,  perhaps,  any  other  circumstance  that  occurred  pre- 
viously to  the  yearly  meeting  of  1827,"  there  needs  be  no  surprise 
that  this  meeting  should  not  be  in  a  state  to  take  it  under  consider- 
ation ;  and  the  propriety  of  a  postponement  until  time  should  have 
shed  its  calming  influence,  and  the  consistency  of  this  course  with 
the  avowed  principles  and  frequent  practice  of  the  society  of 
Friends,  are  very  manifest. 

The  remarks  which  I  have  made  on  these  cases,  selected  by  way 
of  example,  and  for  the  sake  of  illustration,  render  it  unnecessary 
that  I  should  particularly  notice,  or  enter  at  large  into  the  state- 
ment or  consideration  of  others  of  the  same  general  character. 
If  the  principles  which  I  have  endeavored  to  establish,  and  have 
applied  to  these  cases,  are  correct,  the  others  can  have  no  greater 
influence  on  the  question  of  the  continued  existence  of  the  yearly 
meeting. 

Another  point  has  been  decidedly  taken,  on  the  part  of  those 
who  maintain  the  dissolution  and  reorganization  of  the  ancient 
yearly  meeting,  and  which  I  have  shortly,  under  this  head,  ex- 
pressed by  the  phrase,  "  feelings  of  individuals."  It  is  more  at 


644  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

large  explained,  in  the  first  public  document  issued  from  the 
meeting  in  Green  street,  thus :  "  The  unity  of  this  body  is  inter- 
rupted ;  a  division  exists  among  us,  developing  views  which  ap- 
pear incompatible  with  each  other,  and  feelings  averse  to  a  re- 
conciliation." Now  admitting  this  to  be  true,  and  it  may,  per- 
haps, be  rather  to  be  lamented  than  denied,  that  such  incom- 
patible views  and  averse  feelings  existed  in  both  parts  of  this 
body ;  what  consequence  can  fairly,  legally,  upon  any  practical 
principles  of  human  action,  result  to  the  existence  of  the  meet- 
ing, and  the  connection  of  the  society  ?  What  consequence,  on 
the  pacific  principles  always  maintained  among  the  Friends?  If 
time,  charity,  a  recollection  of  the  common  sufferings  of  them- 
selves and  their  ancestors;  if  prayer  and  supplication;  if  the 
smiles  of  the  Great  Head  of  the  church  universal,  would  not 
change  and  reconcile  these  views,  reverse  and  soothe  these  feel- 
ings, then  might  those  who  thought  "  the  period  had  fully  come 
when  they  ought  to  look  towards  making  a  quiet  retreat,"  have 
justly  said  to  the  others,  "  Let  there  be  no  strife,  I  pray  thee, 
between  me  and  thee,  and  between  my  herdsmen  and  thy  herds- 
men, for  we  be  brethren  !  Separate  thyself,  I  pray  thee,  from 
me ;  if  thou  wilt  take  the  left  hand,  then  I  will  go  to  the  right ;  or 
if  thou  depart  to  the  right  hand,  then  I  will  go  to  the  left."  But 
without  even  an  attempt  at  such  voluntary  separation,  I  can  see 
no  safe  principle,  which  will  entitle  a  portion  of  those  who  enter- 
tained such  views  and  feelings,  on  account  of  their  existence  and 
prevalence,  to  disfranchise  the  rest,  to  declare  the  ancient  meeting 
dissolved,  the  society  broken  up  into  its  individual  elements,  and 
then  proceed  to  erect  among  themselves  a  new  body,  and  declare  it 
the  society  of  Friends,  and  its  meeting,  not  merely  a  new  yearly 
meeting,  but  the  ancient  and  legitimate  yearly  meeting  ;  not  a 
new  yearly  meeting,  but  the  meeting  resettled  on  its  ancient  foun- 
dations and  principles. 

If  a  portion  of  this  religious  community  found,  or  believed  to 
exist,  in  another  portion,  such  feelings  and  views  as  rendered  it 
impracticable  for  them  any  longer  to  fraternize,  any  longer 
peacefully,  harmoniously  and  profitably  to  meet  and  commune 
and  worship  together,  a  very  sufficient  reason,  in  conscience, 
may  have  been  thereby  afforded  them  to  withdraw,  to  make  "  a 


JULY  TERM,  1832.  645 


Hendrickson  v.  Decow. 


quiet  retreat ;  "  and  the  principles  of  the  government  under  which 
we  have  the  happiness  to  live,  would  have  sustained  them  in 
(he  measure,  and  allowed  them  to  join  any  other  religious  com- 
munity, or  form  another  association,  of  whatever  name,  for  re-1- 
ligious  purposes.  But  the  existence  of  such  feelings  and  views, 
would  not  deprive  those  who  remained  of  their  ancient  name, 
rights  and  privileges,  if  they  retained  their  ancient  faith  and 
doctrine,  maintained  their  wonted  testimonies,  and  adhered  to 
their  ancient  standards ;  nor  would  the  act  of  withdrawal,  even 
if  by  a  majority,  confer  on  them  the  form  and  name,  the  power 
and  authority  of  the  ancient  community.  In  like  manner,  if  a 
portion  discovered  in  the  rest,  or  in  some  of  the  more  influential 
members,  a  determination  "  to  rule  or  to  rend,"  although  hereby, 
in  conscience,  a  sufficient  reason  to  excuse  or  justify  a  withdraw- 
al might  be  found,  yet  could  not  even  a  majority  carry  with 
them,  the  power  and  authority  and  rights  of  the  whole,  unless  the 
disposition  or  determination  had  been  carried  out  into  overt  acts ; 
for,  of  the  latter  only,  can  men  judge  or  be  judged  by  their  fellow 
men,  while  of  the  former,  He  alone  can  take  cognizance,  who  know- 
eth  the  secrets  of  all  hearts. 

I  have  thus  endeavored  to  examine  and  weigh,  in  detail,  or  by 
its  principles,  every  argument  which  I  have  either  heard  or  read, 
to  prove  that  the  body  which  sat  in  Arch  street  meeting-house, 
in  April,  1827,  was  not,  or  ceased  to  be,  tlte  Philadelphia  yearly 
meeting  of  Friends.  The  position  is  not  maintained.  At  the 
closing  minute,  that  body  was  the  ancient  legitimate  yearly  meet- 
ing, as  fully  as  during  the  forenoon  sitting  of  the  first  day,  or  as  it 
had  been  at  'any  point  of  time  since  the  year  1685. 

If  this  be  true,  if  the  body  which  then  closed  its  functions  for 
the  time,  in  the  usual  manner,  and  by  the  ancient  minute,  was 
the  legitimate  body,  it  is  enough  for  the  present  occasion,  nor 
need  we  look  at  its  future  history,  because  the  new  body,  which 
claims  its  power  and  place,  assembled  in  the  course  of  a  few 
months,  and  before  the  recurrence  of  the  next  annual  period. 
It  may  not,  however,  be  unprofitable  to  state  in  this  connection, 
as  appears  from  the  evidence,  that  in  the  year  1828,  and  since, 
annually,  at  the  wonted  time  and  place,  meetings  have  been 
held,  of  such  as  have  thought  proper  to  attend,  of  the  acknow- 


64G  CASES  IN   CHANCERY. 

Hendrickson  v.  Decow. 

ledged  members  of  the  ancient  society,  -who  have  not  been  dis- 
franchised by  any  act  of  any  tribunal,  claiming  to  represent  the 
society  of  Friends,  or  to  possess  or  exert  any  power  of  disown- 
ment. 

If  the  body  which  thus  held  and  closed  its  session,  was  the 
regular,  constitutional  yearly  meeting,  it  follows,  as  an  inevita- 
ble consequence,  that  the  assembly  which  convened  in  October, 
of  the  same  year,  in  Green  street,  could  not  be,  whatever  name 
it  may  have  assumed,  the  ancient  legitimate  yearly  meeting,  the 
common  head  and  centre  of  the  subordinate  meetings,  and  of 
the  society  of  Friends  in  New-Jersey  and  Pennsylvania.  One 
meeting  being  in  life,  another  of  the  same  powers,  rights,  and 
jurisdiction,  could  not,  according  to  the  discipline  of  the  society, 
according  to  the  simplest  elements  of  reason,  according  to  the 
immutable  rules  of  action,  which  must  govern  and  control  all 
human  assemblages,  of  whatever  nature,  whether  religious  or 
civil;  according,  indeed,  to  the  avowed  doctrines  of  the  plead- 
ings in  this  cause,  and  the  consentaneous  declarations  of  coun- 
sel, a  second,  a  subsequent  meeting  could  not  be  sot  up  within 
its  bounds.  The  yearly  meeting,  having  convened  and  closed 
in  April,  1827,  could  not  again  convene,  nor  could  any  body, 
possessing  its  powers  and  authorities  convene,  until  the  same 
month  of  the  succeeding  year,  1828.  The  place  of  meeting 
was  fixed  by  the  voice  of  the  yearly  meeting,  which  alone  had 
the  authority  in  this  respect,  and  alone  could  change  it.  The 
time  was  directed  by  the  constitution  or  book  of  discipline,  to 
which  we  have  had  so  frequent  occasion  to  refer.  The  time 
could,  indeed,  be  altered  by  the  yearly  meeting,  but  .by  it  alone. 
There  was  no  adjournment  made  by  the  yearly  meeting  to  a 
shorter  day  than  the  annual  period.  There  is  no  provision  in  the 
constitution  for  an  intermediate,  or  as  it  is  commonly  denomi- 
nated, a  special  meeting  ;  nor  is  authority  given  to  the  clerk,  to 
any  portion  of  the  members,  or  invested  any  where  else,  to  call 
such  meeting.  Hence  it  clearly  follows,  that  according  to  the 
constitution,  the  yearly  meeting  could  not  again  assemble,  until 
1828 ;  and  no  body,  of  whomsoever  consisting,  or  by  whomso- 
ever composed,  which  may  have  convened  in  the  intermediate 


JULY  TERM,  1832.  647 


Hendricksou  v.  Decow. 


period,  could,  conformably  to  constitutional  principles,  be  the  Phil- 
adelphia yearly  meeting. 

.We  learn,  however,  from  the  evidence  before  us,  that  on  the 
nineteenth,  twentieth,  and  twenty-first  days  of  April,  during  the 
yearly  meeting,  and  after  its  close,  a  number  of  Friends  met  to- 
gether to  confer  on  the  state  of  the  society.  They  resolved  to 
meet  again,  and  accordingly  did  meet,  in  the  sixth  month  of  that 
year,  and  then  recommended  that  a  yearly  meeting  should  be 
held,  on  the  fifteenth  day  of  the  ensuing  month  of  October.  A 
meeting  was  held  at  the  Green  street  meeting-house.  And  this 
meeting  is  said  by  Stacy  Decow,  in  his  answer  to  the  bill  of  in- 
terpleader, to  be  "  the  true  and  legitimate  yearly  meeting  of  Phila- 
delphia," and  by  one  of  the  witnesses,  is  called  "  the  yearly  meet- 
ing reorganized  :"  Abraham  Lower,  1  vol.  Evid.  404.  We  are 
now  to  examine  whether  it  was  so;  and  in  the  present  inquiry  I 
propose  to  lay  out  of  view  the  fact,  which  I  believe  has  been  fully 
demonstrated,  that  the  yearly  meeting  was  actually  in  full  vigor 
and  capacity. 

This  inquiry  is  to  be  conducted  under  two  different  aspects ; 
first,  on  the  assumption  that  the  constitution,  or  discipline  of  the 
society  remained  in  force ;  and  secondly,  on  the  assumption  that 
the  hedge  was  thrown  down,  the  bond  of  union  unloosed,  the 
society  broken  up  into  its  individual  elements,  the  constitution  or 
discipline  not  providing  for  the  emergency,  or  having  crumbled 
into  dust. 

First.  The  constitution  is  in  force.  The  time  and  place  of  the 
yearly  meeting  are  fixed.  April,  not  October,  is  the  one;  Arch 
street,  not  'Green  street,  is  the  other.  Neither  can  be  changed 
without  the  resolution  and  authority  of  the  yearly  .meeting.  No 
Btich  authority  was  given.  On  tbe  contrary,  the  resolve  of  that 
body  was,  that  the  next  yearly  meeting  should  assemble  on  the 
third  second  day  of  April,  at  Arch  street,  at  the  usual  time  and 
place,  "  if  the  Lord  permit ;''  and  these  latter  words  did  not,  as 
is  asserted  in  the  answer  of  Stacy  Decow,  constitute  "a  contin- 
gent adjournment,"  nor  contemplate  "the  circumstance  ...  of 
Friends  not  being  again  permitted  to  assemble  at  that  time;"  but 
were  designed  to  acknowledge  their  humble  and  entire  depen- 
dence on  the  Great  Master  of  assemblies,  without  whose  permis- 


648  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

sion  they  neither  expected  nor  wished  again  to  convene.  A  special 
meeting  of  the  yearly  meeting  is  an  anomaly,  and  unprovided  for. 
Neither  the  few  nor  the  many,  have  power  given  to  them  to  convoke 
Buch  meeting.  If,  then,  the  constitution  was  in  force,  the  meeting 
in  October  was  not  the  true  and  legitimate  yearly  meeting  of  Phil- 
adelphia. 

Second.  Let  us  now  suppose  the  compact  broken,  the  consti- 
tution dissolved,  and  the  disjoined  members  at  liberty  to  act  from 
individual  minds.  Was  the  meeting  entitled  to  the  name  it  then 
assumed?  There  are  three  insurmountable  obstacles.  First,  it  was 
not  convened  as  the  ancient  yearly  meeting.  Second,  the  members 
at  large,  the  only  constituent  parts,  or  in  other  words,  the  indi- 
vidual elements,  were  not,  and  a  portion  of  them  only  was,  invited 
to  assemble.  Third,  it  was  not  composed  or  constituted  as  the 
ancient  yearly  meeting. 

First.  This  October  meeting  was  not  called,  nor  did  it  come 
together  as  the  ancient  yearly  meeting.  The  name  which  it 
thought  proper  then  to  assume,  or  which  was  then  conferred 
upon  it,  cannot  help  this  deficiency.  In  the  call  which  was  is- 
sued, the  faintest  idea  is  not  held  out  that  the  ancient  yearly 
meeting  was  to  be  convoked  ;  no  hint  is  given  that  the  ancient 
meeting  was  to  be  reorganized,  or  to  be  settled  on  its  ancient 
foundations  and  principles.  On  the  contrary,  the  idea  is  con- 
veyed with  comprehensible  distinctness,  that  a  new  yearly  meet- 
ing was  to  be  formed.  The  address,  which  bears  date  in  June, 
contains,  in  the  first  place,  an  avowal  of  the  design  or  object  in 
view,  "to  regain  harmony  and  tranquillity  ...  by  withdrawing 
ourselves,  not  from  the  society  of  Friends,  nor  from  the  exercise 
of  its  salutary  discipline,  but  from  religious  communion  with 
those  who  have  introduced,  and  seem  disposed  to  continue,  such 
disorders  among  us."  There  is  nothing  here  of  remaining  in  the 
ancient  yearly  meeting,  nor  of  continuing  or  reorganizing  it. 
But  let  us  proceed.  "  We  therefore  .  .  .  have  agreed  to  propose 
for  your  consideration,  the  propriety  and  expediency  of  holding," 
what  ?  The  ancient  yearly  meeting  ?  No.  "  A  yearly  meeting 
for  Friends  in  unity  with  us,  residing  within  the  bounds  of  those 
quarterly  meetings  heretofore  represented  in  the  yearly  meeting 
held  in  Philadelphia."  And  farther,  "  It  is  recommended  that 


JULY  TERM,  1832.  649 


Hendrickson  v.  Decow. 


the  quarterly  and  monthly  meetings  which  may  be  prepared  for 
such  a  measure,  should  appoint  representatives  to  meet  in  Phila- 
delphia on  the  third  second  day  in  tenth  month  next,  at  ten 
o'clock  in  the  morning,  in  company  with  other  members  favora- 
ble to  our  views,  there  to  hold  a  yearly  meeting  of  men  and  wo- 
men Friends,  upon  the  principles  of  the  early  professors  of  our 
name."  In  this  clause  are  several  prominent  points.  First,  the 
meeting  was  to  be  composed  of  representatives  from  the  monthly 
as  well  as  the  quarterly  meetings.  Now,  the  ancient  yearly  meet- 
ing had  no  representatives  from  month))'  meetings;  certainly, 
since  the  discipline,  as  adopted  and  published  in  1806.  A  con- 
tinuance of  the  yearly  meeting  could  not,  then,  have  been  con- 
templated, nor  a  reorganization  of  it,  nor  a  settling  of  it  on  its 
ancient  principles.  Second,  it  was  to  be,  not  the  Philadelphia 
yearly  meeting,  but  "a  yearly  meeting  of  men  and  women  Friends:" 
And  thirdly,  it  was  to  be  formed  on  the  principles  of  the  early  pro- 
fessors of  our  name,  not  on  the  platform  of  the  yearly  meeting,  as 
erected  by  the  book  of  discipline. 

Second.  This  meeting  in  October,  was  not  so  convened  as  to  en- 
title it  t»  assume  the  name,  and  to  take  the  place  of  the  Philadel- 
phia yearly  meeting. 

If  the  yearly  meeting  was  dissolved,  and  the  society  brought 
back  to  a  mere  collection  of  individuals;  if  the  state  of  things 
were  such  that  individual  minds  might  ngw  form  anew  or  reor- 
ganize, as  they  are  said  to  have  originally  formed,  it  is  a  very 
clear  proposition,  and  not  to  be  controverted,  that  all  the  indi- 
viduals of  the  society  ought  to  have  been  called  ;  none  should 
have  been  directly  or  indirectly  excluded.  Whatever  dissensions 
had  risen  up,  whatever  animosities  existed,  the  former  members 
of  the  society  remained  such,  and  those  who  did  not  meet  in 
Green  street,  in  person  or  by  representatives,  were,  as  much  as 
they  who  did,  members  and  individual  elements.  All,  then,  had 
a  right  to  be  called,  all  must  be  called,  all  must  be  afforded  an 
opportunity  to  assemble,  or  no  convocation  can  be  lawful,  the 
true  and  legitimate  yearly  meeting  cannot  be  there.  Now,  the 
recommendation  or  invitation  to  assemble,  was  not  comprehen- 
sive, but  exclusive,  not  general,  but  limited.  A  particular  class 
or  description  only  were  invited  ;  all  the  rest  were  debarred  and 


650  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

shut  out.  The  maxim,  expressio  unius  est  exclusio  alterius,  is 
adopted  in  the  law,  only  because  it  is  the  dictate  of  common 
sense.  For  whom  was  the  meeting  ?  Who  were  to  attend  ? 
"  For  Friends  in  unity  with  us."  Not  for  Friends  in  general,  not 
for  the  members  of  the  ancient  yearly  meeting,  but  for  such  only 
as  were  in  unity  with  those  who  made  the  proposal.  Who  were 
invited  to  send  representatives  ?  All  the  monthly  and  quarterly 
meetings  ?  By  no  means.  "  The  monthly  and  quarterly  meet- 
ings which  may  be  prepared  for  such  a  measure"  This  language 
cannot  be  misunderstood  or  misconstrued ;  and  besides  the  rep- 
resentatives, for  as  we  have  heretofore  seen,  all  who  were  led 
by  inclination  or  duty,  came  in  their  individual  capacity  to  the 
yearly  meeting,  who  were  to  meet  in  company  with  them  ?  All 
the  society  ?  All  other  members  ?  Not  so.  "  Other  members 
favorable  to  our  views."  Was,  then,  the  yearly  meeting  con- 
voked? Was  even  a  general  meeting  of  the  society  of  Friends 
called  ?  Ingenuity  cannot  pervert,  blindness  cannot  mistake, 
such  perspicuity.  If  I  may  be  permitted  to  use  a  term,  because 
it  is  so  common  as  to  be  well  understood,  and  not  because  I  mean 
to  make  any  offensive  application  of  it,  the  call  was  for  the  meet- 
ing of  a  party.  I  do  not  intend  to  say,  a  right  party,  or  a  wrong 
party,  for  the  subject  will,  in  its  nature,  admit  of  either  qualifi- 
cation, but  a  party.  And  such  a  convocation,  of  a  portion  only 
of  the  society,  the  rest,  whether  majority  or  minority,  or  how- 
ever small  in  comparative  numbers,  being  excluded,  cannot  be 
the  true  and  legitimate  yearly  meeting,  cannot  be  the  ancient  yearly 
meeting  reorganized  and  settled  again  on  its  ancient  foundations 
and  principles. 

Third.  The  meeting  in  October  was  not  composed  or  constructed 
as  the  yearly  meeting. 

I  have,  incidentally,  adverted  to  this  subject,  in  showing  the 
nature  of  the  call,  or  who  were  invited  to  attend  the  meeting ; 
but  I  now  present  it  as  a  characteristic  difference  between  this 
assemblage  and  the  yearly  meeting.  The  yearly  meeting  is 
composed  of  members  of  two  classes,  individuals,  and  the  quar- 
terly meetings ;  the  latter  being  represented  by  delegates.  Such 
is  not  only  the  case  since  the  present  book  of  discipline  was  pub- 
lished by  the  society,  but  was  the  principle  of  organization  when 


JULY  TERM,  1832.  651 


Hendrickson  v.  Decow. 


this  meeting  was  first  established.  Gough,  the  historian,  says, 
"  In  the  year  1669,  it  was  found  expedient  and  agreed  upon,  to 
hold  a  general  meeting  in  London,  representative  of  the  whole 
body  in  England,  and  all  other  parts  where  any  of  the  society 
were  settled,  which,  having  been  henceforth  held  annually,  is  de- 
nominated the  yearly  meeting  in  London.  This  meeting  is  con- 
stituted of  representatives  deputed  fr.om  each  quarterly  meeting  in 
England,  from  the  half-yearly  meeting  in  Ireland,  and  some- 
times from  other  parts,  yet  without  restraining  any  member  in 
unity  with  the  society  from  attending:"  2  Gouyh's  History,  163. 
But  the  meeting  in  Green  street  was  composed  of  three  classes, 
individuals,  quarterly  meetings,  and  monthly  meetings;  some  of 
the'  latter,  as  bodies,  Mount  Holly,  Chesterfield  and  Radnor,  be- 
ing represented  by  their  delegates  :  Exhib.  9.  It  is  no  answer, 
that  members  of  this  society  are  entitled  to  sit  in  their  indi- 
vidual capacity,  and  therefore,  whether  there  as  individuals  or 
delegates,  can  make  no  difference.  This  result  does  not  follow. 
The  representatives  alone,  it  will  be  remembered,  perform  the 
important  service  of  nominating  a  clerk  to  the  meeting.  And 
hence,  the  clerk  who  acted  for,  and  was  appointed  by  this  meet- 
ing was  nominated,  at  the  least  in  part,  by  the  representatives  of 
monthly  meetings,  who  were  irregularly  there.  And  the  incon- 
gruity of  this  procedure  farther  appears  from  this,  that  the  indi- 
vidual members  first  appointed,  in  their  monthly  meetings,  the 
representatives  of  those  meetings,  and  then*  themselves  attended  as 
individual  members.  It  is  manifest,  therefore,  the  October  meet- 
ing was  not  composed  as  a  yearly  meeting  should,  and  could  only, 
have  been. 

In  the  course  of  this  investigation,  it  has  repeatedly  occurred 
to  me,  and  every  time  with  increasing  force,  that  the  grounds  of 
division,  if  no  difference  of  religious  faith  existed,  were  of  an  in- 
ferior and  evanescent  nature.  It  seems  to  me,  though  perhaps 
I  am  unable,  not  being  a  member  of  the  society,  properly  to  ap- 
preciate the  matter,  that  patience,  forbearance,  brotherly  kindness 
and  charity,  the  meek  and  mild  spirit  which  has  been  believed 
to  characterize  and  adorn  the  genuine  Friend,  would,  under  the 
smiles  and  blessing  of  Providence,  have  wrought  out  a  perfect 
reconciliation,  have  brought  again  these  discordant  minds  to  the 


652  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

wonted  harmony,  and  the  unity  of  spirit  would  have  again  pre- 
vailed. If,  indeed,  a  difference  of  faith  and  doctrine  had  grown 
up  and  become  strong;  if  either  portion  had  fallen  off  from  the 
ancient  principles  of  their  church,  and  I  use  the  term,  here,  as 
did  Fox  and  Barclay  and  Penn,  the  breach  is  not  the  subject  of 
surprise,  and  it  must,  with  no  less  truth  than  regret,  be  said, 
"  between' us  and  you  there  is  a  great  gulf  fixed."  In  the  plead- 
ings of  this  cause,  in  the  extended  volumes  of  testimony,  and  in 
the  laborious  arguments  of  the  counsel,  I  do  not  remember  any 
charge  that  the  members  of  the  society,  who  remain  connected 
with  the  Arch  street  meeting,  have  departed  from  the  doctrines 
and  principles  of  Friends,  as  stared  by  their  founder  and  his  ear- 
ly followers  ;  and  I  rejoice  that  I  have  not  been  constrained  to 
inquire  into  the  charge  of  departure,  so  freely  and  frequently 
urged  against  the  members  of  the  Green  street  meeting.  In  any 
remarks  I  have  made,  I  am  not  to  be  understood  as  asserting  or 
countenancing  such  a  charge.  Nor  do  I  mean  to  say,  they  either 
had  or  had  not  grounds  and  reasons  sufficient  to  induce  a  separation. 
With  these,  I  do  not  profess,  for  this  court,  in  the  present  cause,  to 
interfere.  It  is  with  the  legal  consequences  of  their  acts,  we  are 
to  concern  ourselves.  A  separation  of  a  portion  does  not  necessa- 
rily destroy  or  impair,  nor,  as  it  respects  legal  existence,  even 
weaken  the  original  institution.  This  doctrine  was  distinctly  as- 
serted by  the  supreme  court  of  this  state,  in  the  case  of  Den  against 
Bolton  and  others,  which  arose  on  the  division  in  the  Reformed 
Dutch  church  of  the  United  States. 

Upon  the  whole,  I  am  brought,  by  the  most  careful,  faithful, 
and  minute  investigation  of  which  I  am  capable,  to  the  result, 
that  the  Arch  street  meeting  was,  and  the  Green  street  meeting 
was  not,  the  Philadelphia  yearly  meeting  of  the  society  of 
Friends. 

We  are  now  to  look  for  the  consequences  on  the  cause  before 
the  court.  We  have  seen  that  every  preparative  meeting  within 
the  states  of  Pennsylvania  and  New-Jersey,  which  is,  through 
and  by  its  connecting  links,  connected  with,  and  subordinate  to, 
the  yearly  meeting  of  Philadelphia,  is  a  preparative  meeting  of 
the  people  called  Quakers;  and  any  preparative  meeting  or  as- 
semblage of  persons  calling  themselves  a  preparative  meeting, 


JULY  TERM,  1832.  653 

Hendrickson  v.  Decow. 

not  thus  connected  and  subordinate,  is  not  a  preparative  meeting 
of  that  people,  within  the  meaning  of  their  constitution  and  dis- 
cipline, and  within  the  meaning  of  the  subscription  to  the  school  in 
the  present  case,  or  in  other  words,  the  instrument  whereby  the 
trust  fund  was  created.  We  have  farther  seen,  that  the  prepara- 
tive meeting  having  authority  to  appoint  the  treasurer  of  the  school 
fund,  is  the  preparative  meeting  of  Chesterfield,  connected  with, 
and  subordinate  to,  the  yearly  meeting  of  Friends  of  Philadelphia. 
We  have  seen  the  that  preparative  meeting  whereby  Stacy  Decow 
was  appointed  treasurer,  was  not,  at  the  time  of  that  appointment, 
connected  with,  and  subordinate  to,  the  Arch  street  meeting,  but 
had  previously  disunited  itself  therefrom,  and  connected  itself 
with  the  Green  street  meeting  ;  and  that,  therefore,  it  was  not  the 
Chesterfield  preparative  meeting  of  Friends,  at  Crosswicks,  meant 
and  mentioned  in  the  establishment  of  the  school  fund,  and  had 
not  competent  authority  to  discharge  Joseph  Hendrickson  and  ap- 
point a  successor. 

There  is,  then,  no  successor  to  the  person  named  as  treasurer  in 
the  bond  and  mortgage,  and  he  has,  consequently,  the  legal  right 
to  recover  the  money. 

I  do,  therefore,  respectfully  recommend  to  his  excellency  the 
chancellor,  to  decree  upon  this  bill  of  interpleader,  that  the  princi- 
pal and  interest  mentioned  in  the  said  bond,  and  intended  to  be 
secured  by  the  said  mortgage,  of  right  belong,  and  are  payable  to 
the  said  Joseph  Hendrickson,  and  that  he  be  permitted  to  proceed 
on  his  original  bill  of  complaint,  or  otherwise,  agreeably  to  the 
rules  and  practice  of  the  court  of  chancery. 

CHARLES  EWINO. 

DRAKE,  Justice.  The  present  controversy  has  grown  out  of 
the  prosecution  of  a  certain  bond  and  mortgage,  bearing  date 
the  second  day  of  fourth  month,  (April,)  A.  D.  1821,  executed 
by  Thomas  L.  Shotwell  to  Joseph  Hendrickson,  treasurer  of  the 
school  fund  of  Crosswicks  meeting,  to  secure  the  payment  of  two 
thousand  dollars,  with  interest,  at  six  per  cent.,  to  the  said  Joseph 
Hendrickson,  treasurer  as  aforesaid,  or  his  successor,  or  to  his 
certain  attorney,  executor,  administrator,  or  assigns.  Upon  this 
bond,  the  interest  had  been  duly  paid  until  the  second  day  of 


654  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

April,  A.  D.  1827.  The  interest  from  that  date,  together  with  the 
principal,  composes  the  sum  now  in  dispute. 

It  is  admitted  that  the  money  for  which  these  securities  were 
given,  is  part  of  a  fund,  the  principal  part  of  which  was  raised 
about  the  year  1792,  by  the  voluntary  subscriptions  of  a  considera- 
ble number  of  the  members  of  the  preparative  meeting  of  the  peo- 
ple called  Quakers,  at  Crosswicks,  in  the  township  of  Chesterfield, 
county  of  Burlington,  and  state  of  New-Jersey;  for  the  purpose 
of  creating  an  interest,  or  annuity,  "to  be  applied  to  the  education 
of  such  children  as  now  do,  or  hereafter  shall,  belong  to  the  same 
preparative  meeting,  whose  parents  are  not,  or  shall  not  be,  of 
ability  to  pay  for  their  education."  And  this  fund  was  to  be 
"under  the  direction  of  the  trustees  of  the  said  school/'  (the  school 
then  established  at  Crosswicks,)  "  now,  or  hereafter,  to  be  chosen 
by  the  said  preparative  meeting." 

It  is  further  admitted,  that  previous  to  the  year  1827,  there  was 
but  one  preparative  meeting  of  the  people  called  Quakers,  at  Cross- 
wicks  ;  although  it  was  sometimes  designated  as  the  Chesterfield 
preparative  meeting,  at  Crosswicks  ;  and  at  other  times,  as  the 
preparative  meeting  of  Friends,  at  Crosswicks.  It  was  an  associa- 
tion, or  meeting,  of  the  religious  society  of  Friends ;  and  it  had 
the  power  to  appoint  the  trustees  of  the  school,  the  treasurer,  and 
other  officers  of  the  association. 

Joseph  Hendrickson,  one  of  the  above  named  parties,  was 
appointed  treasurer  of  this  meeting  in  1816,  and  was  continued 
in  that  office,  as  all  parties  agree,  until  the  summer  or  autumn 
of  1827,  .when  disputes  arose  in  that  meeting,  and  others  with 
which  it  stood  connected,  which  resulted  in  the  separation  of  one 
part  of  its  members  from  the  other  part.  One  party,  or  division 
of  that  body,  have  continued  the  said  Joseph  Hendrickson  in  the 
office  of  treasurer.  The  other  party,  in  the  month  of  January, 
1828,  appointed  Stacy  Decow,  another  of  the  above  named  parties, 
to  the  same  office,  and  have  continued  him  in  that  office  until  the 
present  time. 

Both  Hendrickson  and  Decow,  claim  to  be  the  treasurer  of  the 
Chesterfield  preparative  meeting,  and,  in  that  capacity,  to  have 
the  custody  of  this  fund.  As  both  have  been  appointed,  al- 
though by  different  bodies,  or  different  parts  of  the  same  body, 


JULY  TERM,  1832.  655 


Hendrickson  v.  Decow. 


the  title  to  the  office  must  depend  upon  the  appointing  power  ; 
that  is,  the  preparative  meeting.  And  inasmuch  as  two  several 
bodies  pretend,  each,  to  be  the  true  preparative  meeting,  and  one 
only  is  contemplated  as  the  trustee  of  this  fund,  it  becomes  neces- 
sary to  inquire  which  is  the  true  preparative  meeting. 

It  appears  by  the  testimony,  that  on  the  twenty-seventh  day 
of  December,  A.  D.  1827,  the  Chesterfield  preparative  meeting 
of  Friends  was  divided,  by  the  minority  of  the  members,  assem- 
bled at  thab  time,  withdrawing  to  another  house,  leaving  the  ma- 
jority, with  the  clerk,  at  the  usual  place  of  meeting.  They  con- 
tinued their  business  there ;  and  the  minority  organized  anew,  or 
held  another  meeting,  having  appointed  a  new  clerk  to  act  for 
them. 

If  this  preparative  meeting  were  an  independent  body,  acting 
without  the  influence  of  any  conventional  principle  operating 
upon  this  point,  the  act  of  the  minority  on  this  occasion  would  not 
affect  the  powers  of  the  majority  who  remained  in  session  ;  how- 
ever it  might  expose  itself,  and  the  members  composing  it,  to  dis- 
abilities. But  the  right  to  make  appointments,  and  to  exercise  the 
other  functions  of  the  preparative  meeting,  would  still  continue 
with  the  larger  party :  7  Serg.  and  Rawle,  460 ;  5  Binney,  485  ; 
5  Johnson,  39;  1  Bos.  and  Pal.  229;  2  Dessauseure,  583;  16 
Jfass.  418. 

But  the  preparative  meeting  is  not  an  independent  body,  but  a 
component  part  of  the  religious  society  of  Friends.  Hence, 
it  is  necessary  to  examine  its  connection  with  the  society  of 
Friends,  and  the  history  of  that  society,  so  far  as  it  influences 
the  separation  in  this  preparative  meeting,  in  order  to  determine 
the  question,  which  of  these  bodies  is  the  true  preparative  meet- 
ing; and  is,  of  course,  entitled  to  appoint  a  treasurer,  and  to  man- 
age this  fund. 

The  society  of  Friends,  as  it  existed  at  the  time  when  this  school 
fund  was  created,  and  thence  down  to  the  year  1827,  was  an  as- 
sociation of  Christians,  bound  together  by  a  distinct  government, 
peculiar  testimonies,  and,  as  one  party  contends,  by  certain  re- 
ligious doctrines,  deemed  by  them  fundamental.  For  their  go- 
vernment, the  Friends  residing  in  New-Jersey  and  Pennsylvania, 
as  early  as  the  year  1689,  established  a  general  meeting,  called  a 


656  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

yearly  meeting,  in  which  the  numerous  inferior  meetings  have 
been  represented,  and  which  all  the  members  of  the  society  have 
had  a  right  to  attend :  1  vol.  Evid.  333.  That  yearly  meeting, 
soon  after  its  institution,  adopted  and  published  certain  articles  of 
government,  called,  "  Rules  of  discipline  of  the  yearly  meeting  of 
Friends,  held  in  Philadelphia."  This  is  acknowledged  by  all  the 
parties  to  this  suit,  as  their  system  of  government,  and  by  that,  so 
far  as  its  provisions  extend,  all  profess  to  be  willing  to  be  tried. 
In  this  publication,  we  fincl  that  their  meetings  for  discipline  are 
declared  to  be;  (Intro.  Discip.  3,)  "First,  preparative  meetings, 
which  commonly  consist  of  members  of  a  meeting  for  worship ; 
second,  monthly  meetings,  each  of  which  commonly  consists  of  sev- 
eral preparative  meetings  ;  third,  quarterly  meetings,  each  of  which 
consists  of  several  of  the  monthly  meetings  ;  and,  fourth,  the 
yearly  meeting,  which  comprises  the  whole." 

And  the  connection  and  subordination  of  these  meetings,  are 
declared  to  be  thus ;  (Discip.  31,)  "  Preparative  meetings  are  ac- 
countable to  the  monthly  ;  monthly,  to  the  quarterly  ;  and  the 
quarterly,  to  the  yearly  meeting.  So  that,  if  the  yearly  meeting  be 
at  any  time  dissatisfied  with  the  proceedings  of  any  inferior  meet- 
ing;  or  the  quarterly  meeting  with  the  proceedings  of  either  of  its 
monthly  meetings;  or  a  monthly  meeting  with  the  proceedings  of 
either  of  its  preparative  meetings ;  such  meeting  or  meetings 
ought,  with  readiness  and  meekness,  to  render  an  account  thereof, 
when  required." 

This  preparative  meeting  at  Chesterfield,  was  established  at  an 
early  period.  It  was,  ever  since  its  origin,  connected  with,  and, 
in  the  sense  of  the  book  of  discipline,  subordinate  to,  the  Ches- 
terfield monthly  meeting ;  which  was  subordinate  to  the  Bur- 
lington quarterly  meeting ;  and  that,  to  the  Philadelphia  yearly 
meeting. 

Such  were  the  connections  sustained  by  this  preparative  meet- 
ing, at  the  commencement  of  the  year  1827.  I  said,  that  we 
must  review  the  history  of  the  whole  body,  so  far  as  it  operated 
upon  the  division  of  the  Chesterfield  meeting,  at  the  close  of  that 
year.  During  the  same  year,  a  division  took  place  in  the  Phi- 
ladelphia yearly  meeting,  which  was  followed  up  by  divisions  in 
all  the  subordinate  meetings,  or  at  least  all  with  which  this  pre- 


JULY  TERM,  1832.  657 

Hendrickson  v.  Decow. 

parative  meeting  was  connected  in  its  subordination.  The  divi- 
sion so  resulted,  that  as  early  as  tenth  month,  1827,  there  were 
two  yearly  meetings  in  existence,  (1  vol.  Evid.  622 ;  vol.  Evid. 
457,)  each  claiming  to  be  the  true  yearly  meeting  of  the  society 
of  Friends ;  one  assembling  in  Arch  street,  and  the  other  in 
Green  street,  Philadelphia.  Which  of  these  two  meetings  was 
the  head  to  which  the  inferior  meetings  should  account,  &c.  ac- 
cording to  the  constitution  of  the  society?  They  could  not  both 
be.  For  in  this  case,  it  would  not  only  be  hard,  but  impossible, 
for  the  inferior  meetings  to  serve  two  masters.  But  which  should 
it  be?  Upon  this  point  the  members  of  the  inferior  meetings  could 
not  agree.  And  hence,  a  corresponding  division  took  place  in 
the  Burlington  quarterly  meeting,  in  eleventh  month,  1827, 
(2  vol.  Evid.  207-8,)  which  resulted  in  two  distinct  quarterly 
meetings ;  one  assembling  at  the  city  of  Burlington,  and  the 
other  at  Chesterfield.  And  a  division  also  took  place,  in  ninth 
or  tenth  month,  1827,  in  Chesterfield  monthly  meeting.  A  dis- 
pute arising,  respecting  the  propriety  of  granting  a  certificate  of 
membership  to  an  individual,  to  be  presented  to  Green  street 
monthly  meeting;  which  dispute  was  founded  on  the  question, 
whether  that  meeting  still  retained  its  connection  with  the  Arch 
street  yearly  meeting,  or  had  joined  that  of  Green  street:  the 
clerk,  David  Clark,  not  acting  in  reference  to  this  matter  with 
the  promptness  desired  by  the  party  in  favor  of  making  the  certi- 
ficate, they  considered  him  as  refusing,  or  at  least,  as  neglecting 
to  serve  the  meeting,  and  at  once  called  another  person,  Jediah 
Middleton,  to  the  chair,  to  serve  them  as  clerk :  1  vol.  Evid.  337  ; 
2  vol.  Ibid.  284.  After  which,  the  two  parties  conducted  their 
business  separately ;  the  minority  and  old  clerk,  adhering  to  the 
Burlington  quarterly  meeting,  in  connection  with  the  Arch  street 
yearly  meeting,  and  the  other  party  sending  representatives  to  the 
Green  street  yearly  meeting:  2  vol.  Evid.  296-7.  323. 

It  was  after  this  complete  division  of  the  Chesterfield  monthly 
meeting,  that  the  transaction  took  place  in  the  preparative  meet- 
ing before  noticed.  These  meetings  were  compsed,  in  some- 
measure,  of  the  same  persons.  The  clerk,  James  Brown,  and 
many  other  persons  there,  had  previously  manifested  their  par- 
tiality to  one  or  the  other  of  the  great  parties  which  had  grown/ 

2  T 


G58  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

up  in  the  society,  and  to  their  respective  yearly  meetings.  In 
making  out  answers  to  the  queries,  which  were,  by  the  monthly 
meeting,  in  eleventh  month,  1827,  addressed  to  the  preparative 
meeting  according  to  the  book  of  discipline,  page  89,  the  clerk 
of  the  preparative  meeting  had  made  return  to  Jecliah  Middleton, 
the  clerk  of  that  monthly  meeting  connected  with  the  Chester- 
field quarter,  and  Green  street  yearly  meeting;  (2  vol.  Evid. 
323,) — thus  acknowledging  the  meeting  of  which  he  was  clerk, 
to  be  a  branch  of  that  yearly  meeting.  He  had  also  denied  the 
authority  of  the  monthly  meeting,  of  which  David  Clark  was 
clerk:  1  vol.  Evid.  325;  2  vol.  Ibid.  323.  In  eleventh  month, 
1827,  the  Burlington  quarter,  connected  with  the  Arch  street 
yearly  meeting,  appointed  a  committee  to  visit  its  subordinate 
meetings:  1  vol.  Evid.  325-6.  On  the  twenty-seventh  of  twelfth 
month,  (December,)  that  committee  presented  themselves  before 
the  Chesterfield  preparative  meeting  then  assembled.  A  commit- 
tee also  presented  itself  from  the  Burlington  quarter,  connected 
with  the  Green  street  yearly  meeting.  An  inquiry  was  made  of 
the  clerk,  or  meeting,  in  what  connection  this  preparative  meet- 
ing was  then  acting.  No  direct  reply  was  given.  It  being  man- 
ifest that  the  harmony  of  the  meeting  was  broken,  and  all  par- 
ties knowing  the  predilections  of  themselves  and  others  to  be  so 
fixed,  that  it  was  useless  to  spend  time  in  debate,  the  minority, 
wishing  to  sanction  no  proceeding  which  would  change  their 
connection  or  allegiance,  withdrew;  protesting  against  anv  for- 
feiture  of  their  rights  thereby.  Since  which,  the  two  parties  once 
composing  that  preparative  meeting,  have  each  held  its  own 
meeting,  in  subordination  to  their  respective  monthly,  quarterly, 
and  yearly  meetings,  as  before  stated. 

Much  investigation  was  made  into  the  precise  conduct  of  the 
respective  parties,  in  effecting  these  divisions;  but  I  do  not  re- 
gard the  particular  acts,  or  formalities,  observed  by  these  subor- 
dinate meetings,  as  of  much  consequence,  seeing  there  is  a  com- 
plete separation  of  the  society  into  two  distinct  bodies,  acting 
under  separate  governments;  although  each  still  professes  to  ad- 
here to  the  ancient  discipline  and  worship.  Our  inquiry  now 
must  be,  whether  each  of  these  bodies  is  to  be  considered  as  the 
society  of  Friends,  contemplated  in  this  trust,  or  only  one  of 


JULY  TERM,  1832.  659 

Hendrickson  v.  Deco-jr. 

them  :  And  if  but  one,  which  is  that  one  ?  And  which  yearly 
meeting  represents  it?  For  if  there  be  but  one  society,  and  one 
yearly  meeting  which  answers  to  the  trust,  the  inferior  meetings 
must  follow  the  fate  of  those  to  which  they  stand  connected. 
Every  Friend  is  a  member  of  this  yearly  meeting.  It  is  the 
yearly  meeting  which  overlooks,  controls,  and  exerts  a  care  over 
all  that  are  in  connection  with  it;  which  hears  their  appeals  in  the 
Jast  resort ;  which  preserves  their  uniformity  in  discipline,  and  in 
the  maintenance  of  their  peculiar  testimonies;  in  a  word,  which 
identifies  them  as  a  body  of  Friends.  And  in  order  to  determine 
which  is  the  true  preparative  meeting  at  Crosswicks,  we  must  as- 
certain which  is  the  true  yearly  meeting  of  Friends,  held  in  Phila- 
delphia. 

The  yearly  meeting  was  established  in  Burlington,  in  the  year 
1681  :  "l  vol.  Fraud's  Hist.  Fenn.  160-61.  It  was  held  alter- 
nately at  Burlington  and  Philadelphia,  from  1684  to  1761;  after 
which  it  was  removed  entirely  to  Philadelphia,  and  was  held  there 
annually  and  in  great  harmony,  until  within  the  last  ten  or  twelve 
years  ;  within  which  time,  jealousies  have  arisen  among  the 
members,  which  increased,  until  the  meeting  held  in  fourth 
month,  1827,  which  was  the  last  held  by  the  united  body.  The 
dissensions  previous  to,  and  at  that  meeting,  came  to  such  a  height, 
that  one  party  withdrew,  and  took  measures  for  the  formation  of  a 
new  yearly  meeting,  as  the  other  party  insist,  or  as  they  say,  for 
the  reorganization  and  purification  of  the  eJd  one.  It  will  be 
necessary  to  look  a  little  into  particulars,  to  discover  the  character 
of  this  transaction,  and  what  should  be  its  effect  upon  the  present  case. 
And  I  should  have  observed,  that  I  use  the  word  party,  or  parties, 
"  Orthodox  "  and  "  Hicksite,"  in  this  opinion,  merely  to  designate 
individuals  or  bodies  of  men,  acting  together,  and  not  with  any 
reference  to  the  feelings,  motives,  or  principles,  upon  which  they 
may  have  acted. 

Questions  of  importance  were  expected  to  arise  at  the  yearly 
meeting  of  1827,  upon  which  disagreement  was  anticipated. 
The  respective  parties  made  such  preparations  for  the  approach- 
ing business  of  that  meeting  as  they  deemed  proper.  The  clerk, 
being  the  officer  who  collects  the  sense  of  the  meeting  on  the 
questions  submitted  to  it,  and  declares  its  decisions,  was  justly 


6GO  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

considered  as  holding  an  important  station,  which  neither  was 
willing  to  have  filled  by  a  person  unfriendly  to  its  views.  The 
nomination  of  a  clerk  to  the  yearly  meeting,  was  the  appropriate 
business  of  the  representatives  from  the  quarterly  meetings  : 
1  vol.  Evid.  68,  217.  In  the  meeting  held  by  them  for  that 
purpose,  Samuel  Bettle  and  John  Comly  were  nominated.  Each 
party  advocated  the  pretensions  of  its  favorite  candidate,  but  nei- 
ther candidate  was  agreed  upon.  Upon  its  being  reported  to  the 
yearly  meeting,  that  the  representatives  were  unable  to  agree, 
some  person  suggested,  that  it  was  the  practice  of  the  society  for 
the  old  clerk  to  act  until  a  new  one  was  appointed  ;  1  vol.  Evid. 
68,  218.  In  this,  there  was  at  least  a  partial  acquiescence  of 
the  opponents  of  the  old  clerk :  1  vol.  Evid.  69,  218  ;  2  vol. 
Ibid.  21,  267,  392.  He  took  his  seat  at  the  table,  and  John 
Comly,  the  rival  candidate,  took  his,  as  assistant  clerk.  The 
next  morning  the  latter  expressed  a  repugnance  to  serve  the 
meeting,  made  up,  as  he  stated,  "of  two  irreconcilable  parties;" 
but  for  some  reason  or  other,  he  again  acquiesced,  and  acted  as 
assistant  clerk  the  residue  of  the  meeting.  One  other  subject  of 
dispute  occurred  towards  the  close  of  that  meeting.  It  was  re- 
specting the  appointment  of  a  committee  to  visit  the  inferior  meet- 
ings. To  thia  there  was  considerable  opposition,  but  the  clerk 
finally  recorded  a  minute  in  favor  of  the  appointment.  After 
which,  the  meeting  adjourned,  "  to  meet  at  the  same  time  and  place 
the  next  year :"  1  vol.  Evid.  70. 

On  the  nineteenth,  twentieth  and  twenty-first  of  April,  1827, 
and  during  the  sitting  of  the  yearly  meeting,  another  meeting  was 
held  in  Green  street,  at  which  an  address  to  the  society  of  Friends 
was  agreed  upon ;  which  was  subscribed,  by  direction  and  in 
behalf  of  said  meeting,  by  John  Comly  and  others;  in  which 
address,  after  alluding  to  the  divided  state  of  the  society  in  doc- 
trine and  in  feeling,  and  to  measures  of  the  yearly  meeting 
deemed  oppressive,  they  state  their  conviction,  "  that  the  period 
has  fully  come,  in  which  we  ought  to  look  towards  making  a 
quiet  retreat  from  this  scene  of  confusion  :"  2  vol.  Evid.  454. 
They  adjourned,  to  meet  again  in  the  same  place  on  the  fourth 
day  of  sixth  month,  (June,)  1827.  At  which  second  meeting, 
they  agreed  on  and  published  a  second  address,  in  which,  after 


JULY  TERM,  1832.  661 

Hendrickson  v.  Decow. 

adverting  to  disorders  and  divisions  in  the  society,  and  transac- 
tions of  the  late  yearly,  meeting,  against  the  sense,  as  they  con- 
sidered, of  the  larger  part  of  that  body,  they  add,  "  Friends 
have  viewed  this  state  of  things  among  us  with  deep  concern 
and  exercise,  patiently  waiting  in  the  hope,  that  time  and  re- 
flection would  convince  our  brethren  of  the  impropriety  of  sueh 
a  course,  and  that  being  favored  to  See  the  evil  consequences  «f 
such  conduct,  they  might  retrace  their  steps.  But  hitherto,  we 
have  waited  in  vain.  Time  and  opportunity  for  reflection  have 
been  amply  afforded,  but  have  not  produced  the  desirable  results. 
On  the  contrary,  the  spirit  of  discord  and  confusion  have  gained 
strength,  and  to  us  there  appears  now  to  be  no  way  to  regain  the 
harmony  and  tranquillity  of  the  body,  but  by  withdrawing  our- 
selves, not  from  the  society  of  Friends,  nor  from  the  exercise  of 
its  salutary  discipline,  but  from  religious  communion  with  those 
who  have  introduced,  and  seern  disposed  to  continue,  such  disor- 
ders among  us."  The  address  concludes,  by  proposing  for  con- 
sideration, "  the  propriety  and  expediency  of  holding  a  yearly 
meeting  of  Friends  in  unity  with  us,  residing  within  the  limits 
of  those  quarterly  meetings,  heretofore  represented  in  the  yearly 
meeting  held  in  Philadelphia,  on  the  third  second  day  in  tenth 
month  (then)  next :  2  vol.  Evid.  455,  456.  At  which  time,  a 
yearly  meeting  was  accordingly  held,  in  Green  street,  Philadel- 
phia ;  which  has  been  continued,  at  the  same  place,  from  year  to 
year  ;  and  which  is  the  same  yearly  meeting,  to  which  the  Ches- 
terfield monthly  meeting,  of  which  Jediah  Middleton  is  clerk, 
sent  representatives,  and  to  which  that  meeting,  as  well  as  the  pre- 
parative meeting  of  which  James  Brown  is  clerk,  gave  in  their  ad- 
hesion :  1  vol.  Evid.  50. 

Which  of  these  yearly  meetings  represents  the  society  of  Friends 
contemplated  in  this  trust  ?  A  first  view  strongly  inclines  us  to 
answer,  it  is  that  held  in  Arch  street.  That  was  regularly  ad- 
journed to  meet  at  the  same  time  and  place  next  year,  and  was 
then  held  accordingly,  and  has  been  regularly  continued  until  the 
present  time.  The  other  meeting  was  held,  first,  in  tenth  month, 
1827,  by  those  who  retreated,  or  withdrew  from  the  disorders  of 
the  other,  at  a -new  time,  in  form  at  least,  and  a  new  place.  One 
is  the  old  meeting,  and  the  other  the  new.  But  some  circum- 


662  CASES  IN  CHANCERY. 

Efendrickson  v.  Decow. 

stances  attending  this  separation,  involve  the  case  in  some  degree 
of  doubt.  Those  who  formed  the  Green,  street  meeting,  claim  to 
be  the  majority.  They  complain  of  various  abuses  existing  in 
the  society  for  the  preceding  five  years;  that  "measures  of  a 
party  character  were  introduced"  into  some  of  their  meetings  for 
discipline;  and  that  "the  established  order  of  society  was  in- 
fringed, by  carrying  those*  measures  into  execution  against  the 
judgment,  and  contrary  to  the  voice,  of  a  larger  part  of  the 
Friends  present."  "  At  length,  the  infection  taking  a  wider 
range,  appeared  in  our  yearly  meeting,  where  its  deplorable  ef- 
fects were  equally  conspicuous.  Means  were  recently,  takfia 
therein  to  overrule  the  greater  part  of  the  representatives,  and 
a  clerk  was  imposed  upon  the  meeting  without  their  concur- 
rence or  consent"  And  "a  committee  was  there  appointed  to 
visit  the  quarterly  and  monthly  meetings  without  the  unity  of  the 
meeting,  and  contrary  to  the  solid  sense  and  judgment  of 
much  the  larger  number  of  members  in  attendance:"  2  vol. 
Evid.  456. 

In  connection  with  these  complaints,  we  must  take  into  con- 
sideration some  peculiarities  in  the  mode  of  conducting  the  reli- 
gious meetings  of  Friends.  It  is  insisted  by  the  Arch  street  par- 
ty, that  the  members  of  a  meeting  for  discipline,  are  not  entitled 
to  equal  weight  in  their  decisions  ;  so  that  the  clerk,  whose  busi- 
ness it  is  to  ascertain  and  record  the  sense  of  the  meeting,  should 
not  count  the  number  of  persons  present,  and  decide  with  the 
majority  of  voices,  but  should  pay  more  attention  to  elderly,  pi- 
ous, and  experienced  men,  than  to  those  of  an  opposite  charac- 
ter:  1  vol.  Evid.  64,  184,  333.  On  the  other  side,  it  is  insisted, 
that  all  have  an  equal  voice,  and  that  it  is  the  duty  of  the  clerk 
to  record  the  opinion  of  the  majority,  in  numbers;  or  at  least, 
that  he  should  not  record  a  minute  against  the  sense  of  the  ma- 
jority :  1  vol.  Evid.  43  ;  2  vol.  Ibid.  244.  Another  peculiarity 
is  this,  insisted  on  by  the  Arch  street  party,  and  apparently  con- 
formable to  usage,  that  until  the  appointment  of  a  new  clerk, 
the  old  one  is  to  act.  It  may  be  easily  perceived,  that  the  eifect 
of  these  principles  combined,  may  be  to  place  the  meeting  under 
the  control  of  a  minority,  however  small,  or  even  of  the  clerk 
himself;  and  that  the  majority  have  no  ordinary  means  of  re- 


JULY  TERM,  1832.  663 

Hendrickson  v.  Decow. 

dress,  fur  they  never  can  appoint  a  new  clerk,  and  never  can 
carry  any  measure,  however  just  and  important,  if  Unreasonably 
opposed.  And,  if  it  be  true,  that  through  the  operation  of  these 
principles,  the  majority,  in  the  yearly  meeting  of  fourth  month, 
1827,  was  deprived  of  its  rights,  it  would  incline  me  very  much, 
to  endeavor  to  distinguish  this  case  from  that  of  an  ordinary  seces- 
sion from  the  government  of  a  religious  society. 

The  complaint,  that  ihe  majority  was  overruled,  relates,  I  pre- 
sume, more  particularly  to  the  meeting  of  representatives  from 
the  various  quarters,  whose  business  it  was  to  nominate  a  clerk. 
But  the  proceedings  there  may  have  had,  and  were  evidently, 
by  all  parties,  expected  to  have,  an  important  bearing  on  the  pro- 
ceedings of  the  yearly  meeting.  The  facts  are  somewhat  vari- 
ously stated  by  the  different  witnesses.  But,  in  the  view  I  shall 
take  of  this  question,  I  do  not  think  it  necessary  to  make  a  mi- 
nute inquiry  into  the  facts,  or  to  decide  those  which  are  contro- 
verted. 

It  appears  distinctly  that  no  count,  or  other  certain  means  of 
ascertaining  the  majority,  was  resorted  to.  The  Green  street 
party,  however,  claim  the  benefit  of  a  presumption  that  they 
were  the  majority,  arising  from  the  fact  that  they  insisted  that 
the  majority  ought  to  govern,  and  endeavored  to  take  measures 
to  ascertain  it:  1  vol.  JEvid.  372-3.  This  was  resisted  by  the 
other  party,  either  from  conscious  inferiority  of  numbers,  or 
from  a  consciencious  desire  not  to  violate  the  ancient  usage  of 
the  society,  as  to  the  mode  of  ascertaining  the  solid  sense  of  a 
meeting. 

As  to  the  true  mode  of  ascertaining  the  sense  of  a  meeting,  all 
agree  that  it  is  the  duty  of  the  clerk  to  collect  it,  and  it  has  been 
the  uniform  practice  in  the  society,  for  him  to  do  so  without  re- 
sorting to  a  formal  count,  or  division  of  parties :  1  vol.  Evid.  64, 
330,  458;  2  vol.  Ibid.  169,  250.  This  society  commenced  in 
persecution,  and  has,  heretofore,  been  distinguished  for  its  har- 
mony. Believing  in  the  operation  of  the  spirit  of  truth  on  their 
minds,  not  only  in  worship,  but  in  business,  if  properly  sought 
for,  it  has  been  their  practice  solemnly  to  seek  the  guidance  of 
the  light  within,  and  seldom,  or  never,  to  attempt  influence, 
through  ingenious  argument,  or  noisy  declamation.  Hence,  few 


664  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

have  attempted  to  speak  on  questions.  And  these  would  natu- 
rally be  the  experienced  and  aged.  A  few  voices  from  such  quar- 
ters, unopposed,  has  always  been  sufficient  to  guide  the  clerk. 
If  a  contrariety  of  views  appeared,  it  has  not  been  the  practice 
to  continue  the  debate  a  long  time,  but  if  one  party  did  not  soon 
yield,  to  postpone  the  subject  for  further  consideration.  Hence, 
it  has  doubtless  been  usual  for  the  clerks  to  look  to  leading  men, 
principally,  in  gathering  the  sense  of  the  meeting.  And  this 
practice  being  ancient  and  uniform,  and  withal  countenanced  by 
some  of  their  most  respected  writers,  and  connected  with  their 
religious  faitfi,  strengthens  one  party  in  its  opinion,  not  only  that 
it  is  right  for  the  clerk  to  do  so,  but  that  he  may  carry  it  so  far, 
as  to  record  a  minute  in  opposition  to  the  sense  of  the  majority  in 
numbers:  1  vol.  Evid.  35,  64,  184,  333.  The  other  party 
insist,  on  the  contrary,  that  the  government  in  a  yearly  meeting 
is  strictly  democratic ;  that  all  have  equal  rights  and  an  equal 
voice,  (1  vol.  Evid.  43;  2  vol.  Ibid.  244,)  and  that  howesrer 
much  the  young  and  inexperienced  may,  in  times  past,  have 
yielded  to  the  wise  and  aged,  through  courtesy,  or  from  other 
causes,  yet,  upon  a  question  of  strict  right,  they  are  all  equal. 
This  usage,  as.  it  has  existed,  has  no  doubt  been  salutary  in  it3 
influence,  and  it  is  highly  expedient  to  preserve  it.  Indeed,  it 
appears  to  be  of  almost  vital  importance  to  a  religious  society 
like  this ;  into  which,  members  are  admitted  without  any  public 
declaration  of  their  faith,  and  even  as  a  birthright.  And  yet  it 
is  difficult  to  apply  it,  and  act  upon  it,  under  such  circumstances 
as  resulted  in  the  present  division.  Here  were  two  great  parties, 
dividing,  not  only  the  numbers,  but  the  talents,  experience,  and 
piety  of  this  society,  separated  on  important  questions,  and  each 
tenacious  of  its  opinions.  How  shall  their  controversies  be  de- 
cided ?  It  is  a  general  principle  relating  to  all  associations  of 
men,  that  all  the  members  of  a  meeting,  who  have  a  right  to  a 
voice  at  all,  have  a  right  to  an  equal  voice,  unless  there  be  some- 
thing in  the  terms  of  the  association  to  vary  those  rights.  It  is 
conceded  that  all  the  members  of  this  society,  have  the  right  to 
attend  the  yearly  meeting ;  and  that  the  clerk  may  notice  the 
opinions  of  all:  1  vol.  Evid.  85,  333.  How,  then,  is  he  to  dis- 
tinguish between  them?  The  usage  to  accord  superior  weight 


JULY  TERM,  1S32.  665 

Hendrickson  v.  Decow. 

to  superior  piety  and  experience,  has,  indeed,  been  uniform,  yet 
it  seems  to  want  that  degree  of  certainty,  in  its  application,  which 
an  imperative  rule  of  government  requires.  Who  is  to  judge 
which  members  have  the  most  wisdom,  or  the  greatest  share  of 
the  spirit  of  truth?  Each  individual  may  concede  it  to  another, 
so  as  to  yield  his  own  opinion  to  him,  if  he  will.  But  who  shall 
judge  of  it  for  a  whole  assembly?  Who  shall  allot  among  a 
great  many  individuals,  their  comparative  weight  ?  If  any  body, 
it  must  be  the  clerk.  The  result  is,  that  the  government,  if 
not  a  democracy,  very  much  resembles  a  monarchy.  Neither 
party  would  be  willing  to  call  it  the  latter,  unless  by  supposing 
the  Great  Head  of  the  Church  to  preside,  and  rule  therein.  And 
this  is,  no  doubt,  the  theoretic  principle  on  this  point.  But  who 
is  to  declare  his  decisions?  We  come  back  again  to  the  clerk. 
Will  he  always  declare  them  truly  ?  To  err,  is  human.  He 
may  be  directed  by  light  from  above,  or  he  may  follow  his  own 
will.  And  this  contest  shows  that  neither  party  had  any  confi- 
dence in  the  infallibility  of  the  clerk,  under  the  unusual  and 
trying  circumstances  which  existed.  The  persons  nominated  by 
the  two  parties,  were  respectable  men,  of  great  worth  and  expe- 
rience. They  had  both,  for  a  long  time,  served  the  society  very 
satisfactorily,  in  the  most  responsible  stations, — those  of  clerk, 
and  assistant  clerk.  But  both  had,  or  were  suspected  to  have, 
partialities,  or  wishes  of  their  own,  to  be -gratified  by  the  decisions 
of  the  yearly  meeting.  And  the  consequence  was,  that  they 
were  both  objects  of  the  greatest  distrust.  The  "  Orthodox  "  did 
not  believe  that  John  Comly  could  serve  the  meeting  faithfully, 
and  the  "Hicksites"  were  equally  dubious  of  the  infallibility  of 
Samuel  Bettle. 

This  feature  in  the  government  of  this  society,  whatever  may 
be  its  precise  limits,  is  intimately  connected  with  their  religious 
principles  and  doctrines:  1  vol.  Evid.  64.  They  believe  that 
the  Head  of  the  Church,  when  properly  invoked,  will  shed  his 
influence  upon  their  meetings,  and  be  "a  spirit  of  judgment,  to 
those  who  sit  in  judgment."  Hence,  the  clerk  is  suffered  to 
gather  the  feeling  and  sense  of  a  meeting,  from  those  who 
have  long  manifested  a  spiritual  walk  and  conversation,  aided 
by  the  agency  of  the  spirit  of  truth,  in  his  own  mind.  But,  it 


666  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

is  at  least  possible,  that  a  meeting  should  be  unfitted,  in  a  mea- 
sure, for  this  intercourse  with  the  spirit;  and  that  the  clerk  may 
be  influenced  by  earthly  passions,  and  have  a  will  of  his  own  to 
subserve,  as  well  as  that  of  the  Great  Head  of  the  Church. 
Should  such  a  case  arise,  it  must  be  perceived  that  the  beauty  of 
this  theory  is  marred,  and  the  government  becomes,  not  what  it 
tvas  intended  to  be.  May  it  not  be  said,  that  in  such  case,  the 
condition  on  which  the  power  of  the  clerk  and  the  minority  is 
founded,  is  broken  ?  But  if  it  be,  who  is  to  declare  whether  such 
a  case  has,  or  has  not,  arisen  ?  Or,  what  is  to  be  the  effect  of  an 
abuse  of  this  power?  Or,  how  is  it  to  be  relieved  against?  I 
find  myself  met  by  these  questions,  and  others,  connected  with 
this  important  and  delicate  subject.  And  supposing  that  the  de- 
cision of  this  cause  does  not  require  an  investigation  of  them,  I 
shall  not  attempt  it.  Hence,  I  wish  not  to  be  understood  as  in- 
timating any  opinion,  as  to  the  complaints  of  the  Hicksite  party; 
whether  there  were  really  any  good  grounds  for  them,  or  not ; 
or,  whether,  if  there  were,  it  would  justify  the  course  they  took, 
or  save  them  from  the  legal  consequences  of  a  secession.  I 
would  only  observe,  further,  on  this  branch  of  the  subject,  that 
were  this  a  mere  naked  trust,  to  be  performed  immediately,  by 
the  yearly  meeting,  I  think  I  should  have  no  hesitation  to  award 
it  to  the  Arch  street  meeting;  that  being,  in  point  of  form  at  least, 
the  same  meeting  which  was  in  existence  at  the  time  the  trust 
was  created.  But  the  Chesterfield  preparative  meeting,  with  re- 
spect to  this  fund,  may  fairly  be  considered,  not  merely  as  a 
trustee,  but  as  having  a  beneficiary  interest,  inasmuch  as  the 
fund  is  to  be  expended  in  the  education  of  the  children  of  such 
of  its  members  as  are  poor.  It  is  a  subordinate  meeting,  the 
pretensions  of  which  are  to  be  settled,  by  its  acknowledging  one 
or  the  other  of  these  yearly  meetings  as  its  head.  There  was 
some  difficulty  in  selecting  which  it  should  acknowledge;  and  if 
the  majority  have  mistaken  the  truth,  and  connected  themselves 
with  the  wrong  head,  (supposing  this  to  be  a  mere  dispute  as  to 
government,  or  discipline,)  I  should  feel  very  reluctant  to  con- 
clude that  they  could  have  no  further  right  or  interest  in  the 
fund.  But,  as  I  before  intimated,  I  mean  not  to  form,  or  express 
an  opinion  on  this  subject;  for,  in  surveying  the  pleadings  and 


JULY  TERM,  1832.  667 

Hendrickson  v.  Decow. 

testimony  in  this  cause,  the  conviction  urges  itself  strongly  upon 
my  mind,  that  there  is  another  great  distinction  between  these 
parties,  which  may  be  resorted  to,  to  ascertain  which  is  the  true 
society  of  Friends,  so  far  as  the  purposes  of  this  case  require  the 
decision  of  that  question.  I  mean  the  difference  in  doctr.ine. 

Hendrickson,  in  his  answer  to  the  bill  of  interpleader,  alleges 
that  "the  society  of  Friends,  as  a  Christian  sect,  hold  doctrines  in 
reference  to  Christianity,  which,  like  those  of  other  sects,  are  in 
some  measure,  common  to  all  christiaus,  and  in  other  respects, 
peculiar  to  themselves."  And  that  "the  following  religious  doc- 
trines have  always  been  held  and  maintained  by  them:"  1  vol. 
Evid.  30. 

"  In  the  first  place,  although  the  society  of  Friends  have  seldom 
made  use  of  the  word  trinity,  yet  they  believe  in  the  existence 
of  the  Father,  the  Son  or  Word,  and  the  Holy  Spirit.  That  the 
Son  was  God,  and  became  flesh, — that  there  is  one  God  and 
Father,  of  whom  are  all  things, — that  there  is  one  Lord  Jesus 
Christ,  by  whom  all  things  were  made,  who  was  glorified  with 
the  Father  before  the  world. began,  who  is  God  over  all,  blessed 
for  ever, — that  there  is  one  Holy  Spirit,  the  promise  of  the  Fa- 
ther and  the  Son,  the  leader,  and  sanctifier,  and  comforter  of  his 
people,  and  that  these  three  are  one,  the  Father,  the  Word,  and 
the  Spirit.  That  the  principal  difference  between  the  people 
called  Quakers,  and  other  protestant  trinitarian  sects,  in  regard 
to  the  doctrine  of  the  trinity,  is,  the  latter*"attach  the  idea  of  in- 
dividual personage  to  the  three,  as  what  they  consider  a  fair  lo- 
gical inference  from  the  doctrines  expressly  laid  down  in  the  Holy 
Scripture.  The  people  called  Quakers,  on  the  other  hand,  con- 
sider it  a  mystery  beyond  finite,  human  conception ;  take  up  the 
doctrine  as  expressly  laid  down  in  the  Scripture,  and  have  not 
considered  themselves  warranted  in  making  deductions,  however 
specious. 

"  In  the  second  place,  the  people  called  Quakers  have  always 
believed  in  the  doctrine  of  the  atonement;  that  the  divine  and 
human  nature  of  Jesus  Christ  were  united  ;  that  thus  united,  he 
Buffered;  and  that  through  his  sufferings,  death,  and  resurrec- 
tion, he  atoned  for  the  sins  of  men.  That  the  Son  of  God,  in 
the  fulness  of  time  took  flesh,  became  perfect  man,  according  to 


668  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

the  flesli,  descended  and  came  of  the  seed  of  Abraham  and  Da- 
vid;  that  being  with  God  from  all  eternity,  being  himself  God, 
and  also  in  time  partaking  of  the  nature  of  man,  through  him 
is  the  goodness  and  love  of  God  conveyed  to  mankind,  and  that 
by  him  again  man  receiveth  and  partaketh  of  these  mercies;  that 
Christ  took  upon  him  the  seed  of  Abraham,  and  his  holy  body 
and  blood  was  an  offering  and  a  sacrifice  for  the  sins  of  the  whole 
world. 

"  In  the  third  place,  the  people  called  Quakers,  believe  that  the" 
Scriptures  are  given  by  inspiration,  and  when  rightly  interpreted 
are  unerring  guides;  and  to  use  the  language  adopted  by  them, 
they  are  able  to  make  wise  unto  salvation,  through  faith  which  is 
in  Jesus  Christ.  They  believe  that  the  spirit  still  operates  upon 
the  souls  of  men,  and  when  it  does  really  and  truly  so  operate,  it 
furnishes  the  primary  rule  of  faith.  That  the  Scriptures  proceed- 
ing from  it,  must  be  secondary  in  reference  to  this  primary  scource, 
•whence  they  proceed ;  but  as  inasmuch  as  the  dictates  of  the  spirit 
are  always  true  and  uniform,  all  ideas  and  views  which  any 
person  may  entertain  repugnant  to  the  doctrines  of  the  Scriptures, 
•which  are  unerring,  must  proceed  from  false  lights.  That  such 
are  the  doctrines  entertained  and  adopted  by  the  ancient  society  of 
Friends,  and  that  the  same  doctrines  are  still  entertained  by  the 
Orthodox  party  aforesaid,  to  which  party  this  defendant  belongs. 
That  these  doctrines  are,  with  the  said  religious  society,  fundamen- 
tal;  and  any  individual  entertaining  sentiments  and  opinions  con- 
trary to  all,  or  any  of  the  above  mentioned  doctrines,  is  held  not  to 
be  in  the  same  faith  with  the  society  of  Friends,  or  the  people  called 
Quakers,  and  is  treated  accordingly."  And  he  further  alleges, 
that  previous  to  the  separation,  the  society  became  divided  into  two 
parties,  one  of  which  is  called  the  Orthodox,  and  the  other  the 
Hicksite,  and  that  "  they  differ  essentially  from  each  other  in 
religious  doctrines;"  and  especially  with  respect  to  the  doctrines 
above  stated.  That  the  Orthodox  party  hold  to  them,  but  that  the 
Hicksite  party  do  not  adopt  and  believe  in  them,  but  entertain 
opinions  entirely  and  absolutely  repugnant  and  contrary  there- 
to. 

Decow,  in    his   answer,  alleges,  that  "  the  society  of  Friends 
acknowledge  uo  head   but  Christ,  and  uo  principle  of  authority 


JULY  TERM,  1832.  669 

Hendrickson  v.  Decow. 

or  government  in  the  church  but  the  love  and  power  of  God  ope- 
rating upon  the  heart,  and  thence  influencing  the  judgment,  and 
producing  a  unity  of  feeling,  brotherly  sympathy  and  conde- 
scension to  each  other.  The  great  fundamental  principle  of  the 
society — the  divine  light  and  power  operating  on  the  soul — being 
acknowledged  by  all  its  members  as  the  effective  bond  of  Union  ; 
the  right  of  each  individual  to  judge  of  the  true  meaning  of 
Scripture  testimony,  relating  to  the  doctrines  of  Christianity,  ac- 
cording to  the  best  evidence  in  his  own  mind,  uncontrolled  by  the 
arbitrary  dictation  of  his  equally  fallible  fellow  man,  hath  been  as 
well  tacitly  as  explicitly,  acknowleged  by  the  society  :  1  vol.  JEvid. 
43,45,51.  And  that  the  rules  and  regulations  of  the  system 
of  discipline,  adopted  by  the  society,  "  relate  partly  to  the  preser- 
vation of  a  decent  and  comely  order  in  its  internal  polity;  partly 
to  the  observance  of  the  principles  of  morality  and  justice,  by  all 
belonging  to  it;  and  partly  to  the  maintenance  of  its  peculiar 
testimonies." 

He  further  alleges,  that  "  the  Chesterfield  preparative  meeting 
of  Friends  at  Crosswicks,  to  which  he  belongs,  is  the  same  Ches- 
terfield preparative  meeting  of  Friends  at  Crosswicks,  under 
whose  care  the  said  school  fund  was  placed  by  the  contributors 
thereto,  and  are  identified  with  them  in  due  and  regular  succes- 
sion, and  are  a  part  of  the  ancient  society  of  Friends.  That 
they  believe  in  the  Christian  religion,  as  .contained  in  the  New 
Testament,  and  as  professed  by  ancient  Friends,  and  adhere  to 
the  religious  institutions  and  government  of  the  society  of  Friends  ; 
and  bear  the  same  cardinal  testimonies  to  the  whole  world,  as  are 
held  most  important  and  characteristic  in  the  said  society ;  among 
which  are,  a  testimony  against  war — a  hireling  ministry — against 
taking  oaths — against  going  to  law  with  brethren — and  a  concern 
to  observe  the  golden  rule,  do  unto  all  men  as  we  would  they 
should  do  unto  us." 

It  is  perceived,  that  each  party  claims  for  the  meeting  which 
appointed  him,  an  adherence  to  the  ancient  faith  of  Friends,;  al- 
though they  differ  in  this,  that  one  points  out  certain  doctrines, 
which  he  considers  as  parts  of  that  faith,  and  that  they  are  es- 
sential parts ;  while  the  other,  without  directly  denying  these  to 
be  the  doctrines  of  Friends,  or  that  his  party  in  the  society  hold 


670  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

doctrines  repugnant  thereto,  contents  himself  with  alleging  that 
"  they  believe  in  the  Christian  religion  as  contained  in  the  New 
Testament,  and  as  professed  by  ancient  Friends ;"  and  their  ad- 
herence to  their  peculiar  testimonies,  some  of  which  are  specified  ; 
and  distinctly  advances  "  the  right  of  each  individual  to  judge  of 
the  true  meaning  of  Scripture  testimony,  relating  to  the  doctrines 
of  Christianity,  according  to  the  best  evidence  in  his  own  mind." 
And  by  enumerating  the  other  objects  of  discipline,  he  would  give 
us  to  understand  that  this  is  a  right,  the  exercise  of  which  is  be- 
yond the  control  of  the  discipline  of  the  society. 

There  is  nothing  characteristic  in  "  a  belief  in  the  Christian 
religion,  as  contained  iu  the  New  Testament."  All  sects 'of 
christians,  however  widely  separated,  unite  in  professing  this. 
But  if  I  can  understand  the  liberty  claimed  in  this  answer  for  the 
members  of  the  society,  it  is,  that  they  may  interpret  the  Scrip- 
tures, in  reference  to  the  doctrines  of  the  trinity,  and  of  the  di- 
vinity and  atonement  of  Jesus  Christ,  as  the  light  within  them 
shall  direct. 

But  although  Decow,  in  his  answer,  has,  in  some  measure, 
declared  the  faith  of  the  party  to  which  he  belongs,  yet  he  denies 
that  this,  or  any  other  court,  has  a  right  to  institute  an  inquest 
into  the  consciences  or  faith  of  members  of  religious  associations. 
But  can  this  denial  be  well  founded.  May  this  fund  be  divided, 
and  subdivided,  as  often  as  this  body  shall  separate.  And  parts 
of  it,  from  time  to  time,  be  diverted  from  its  declared  purpose, 
and  appropriated  to  the  education  of  the  children  of  .persons 
connected  with  other  religious  persuasions,  or  of  no  religion  at 
all.  And  yet  that  no  court  can  control  it?  Surely,  this  cannot 
be.  This  trust  can  be  exercised  only  by  a  meeting  of  the  reli- 
ligious  society  of  Friends.  The  fund  can  be  used  only  in  the 
education  of  the  children  belonging  to  a  meeting  of  that  socie- 
ty. And  when,  as  on  this  occasion,  two  distinct  bodies,  which 
have  separated  on  points  of  discipline,  or  doctrine,  or  both,  come 
before*  the  court,  and  each  claim  the  guardianship  and  use  of 
this  fund,  as  belonging  to  the  society  of  Friends ;  this  court  may, 
surely,  inquire  into  the  badges  of  distinction  by  which  the  society 
of  Friends  are  known ;  and  if  they  are  characterized  by  estab- 
lished doctrines,  we  may  inquire  what  those  are,  and  whether 


JULY  TERM,  1832.  671 

Hendrickson  v.  Decow. 

they  belong  to  one,  or  both  of  these  parties.  This  power  is  dis- 
tinctly laid  down,  in  a  recent  case  before  the  house  of  lords,  in 
which  lord  chancellor  Eldon  says,  "  It  is  true,  the  court  cannot 
take  notice  of  religious  opinions,  with  a  view  to  decide  whether 
they  are  right  or  wrong,  but  it  may  notice  them  as  facts,  pointing 
out  the  ownership  of  property:"  1  Daw's  Rep.  1;  2  Jacob  and 
Walk.  248;  3  Merrioale,  412,  419  ;  1  Serg.  and  Rawle,  460;  3 
Dessaussure,  557. 

In  searching  for  the  doctrines  of  this  society^  it  is,  in  my  opin- 
ion, not  necessary  to  inquire  whether  there  were  any  differences 
of  opinion  among  their  ancient  writers,  provided  the  society  had 
for  a  long  time  before  this  fund  was  established,  promulgated  as 
a  body,  their  religious  doctrines,  and  had  settled  down  in  harmo- 
ny under  them.  It  is  a  body  of  Friends,  with  its  settled  and 
known  characteristics,  at  that  time,  which  is  contemplated  in  the 
trust. 

The  society  of  Friends,  or  Quakers,  as  they  were  called  by 
their  opponents,  had  its  origin  in  England  about  the  middle  of  the 
seventeenth  century;  a  time  much  distinguished  for  religious  in- 
quiry, in  many  parts  of  Europe.  It  was  composed  of  persons 
who  could  not  cons^ienciously  agree  with  the  existing  sects,  in 
their  doctrines,  modes  of  worship,  or  practices,  and  who  found 
themselves  drawn  together  by  a  unity  of  faith  and  feeling.  They 
called  themselves  Christians  and  protestanfs-,  but  appear  to  have 
required  from  those  seeking  to  become  united  with  them,  no  for- 
mal profession  of  faith,  as  a  test  of  principle  to  qualify  them  for 
admission  ;  looking  at  their  works  as  evidence  of  their  Christian 
faith,  and  their  practice,  and  support  of  their  peculiar  testimonies, 
as  evidence  of  their  Quakerism.  As  they  increased  in  numbers, 
and  attracted  the  attention  of  the  civil  authorities,  their  princi- 
ples became  the  subject  of  inquiry,  and  of  misrepresentation,  by 
reason  of  which,  they  were  exposed  to  reproach  and  persecution, 
and  it  became  necessary  for  them  to  come  out  and  avow  their 
leading  doctrines  to  the  world.  This  was  done  by  their  leaders 
and  principal  men,  professing  to  act  in  behalf  of  the  society,  on 
several  occasions.  George  Fox,  who  is  generally  regarded  as 
the  founder  of  the  sect,  travelling  in  the  island  of  Barbadoes,  be- 
ing assailed  with  these  misrepresentations,  and  especially  with 


672  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

this,  that  they  denied  God,  Christ  Jesus,  and  the  Scriptures  of 
truth  ;  "  with  some  other  Friends,  drew  up  a  paper  to  go  forth  in 
the  name  of  the  people  called  Quakers,  for  the  clearing  of  truth 
•and  Friends  from  those  false  reports."  It  was  addressed  to  the 
governor  of  Barbadoes,  with  his  counsel  and  assembly.  In  this 
paper,  the  belief  of  Friends  in  God,  the  divinity  and  atonement 
of  Jesus  Christ,  and  the  inspiration  of  the  Scriptures,  is  most 
fully  and  explicitly  avowed :  2  vol.  Fox's  Jour.  145,  138,  316, 
338,  367 ;  1  vol.  'Ibid.  4,  56,  57.  Elias  Hicks  intimates  that 
George  Fox,  for  prudential  reasons,  disguised  his  real  sentiments  : 
1  vol.  Eoid.  116  ;  2  vol.  Ibid.  417.  But  this  ill  agrees  with  the 
history  of  Fox,  and  I  suspect  with  the  belief  of  Friends,  as  to 
his  real  character.  Sewell  has  given  his  character  in  this  respect, 
as  drawn  by  a  cotemporary,  in  these  words.  "  He  was,  indeed, 
a  heavenly  minded  man,  zealous  for  the  name  of  the  Lord,  and 
preserved  the  honor  of  God  before  all  things.  He  was  valiant  for 
the  truth,  bold  in  asserting  it,  patient  in  suffering  for  it,  unwearied 
in  laboring  in  it,  steady  in  his  testimony  to  it,  immovable  as  a 
rock : "  2  vol.  Sewell's  Hist.  464. 

.  In  1689,  the  British  parliament  passed  an  act  for  exempting 
protestant  dissenters  from  certain  penalties,  bf  which  the  Quakers 
had  suffered  for  many  years.  To  obtain  the  benefit  of  this  ex- 
emption, they  subscribed,  among  other  articles,  the  following : 
"I,  A.  B.  profess  faith  in  God,  the  Father,  and  in  Jesus  Christ, 
his  eternal  Son,  the  true  God,  and  in  the  Holy  Spirit,  one  God, 
blessed  for  evermore  ;  and  do  acknowledge  the  Holy  Scriptures 
of  the  Old  and  New  Testament,  to  be  by  divine  inspiration." 
The  historian  adds,  "  we  now  see  the  religion  of  the  Quakers 
acknowledged  and  tolerated  by  an  act  of  parliament : "  2  vol. 
Sewell,  447. 

In  1693,  the  doctrines  of  the  society  being  misrepresented  by 
George  Keith  and  others,  "  they  found  themselves  obliged  to  put 
forth  their  faith  anew  in  print,  which  they  had  often  before  assert- 
ed, both  in  words  and  writing,  thereby  to  manifest  that  their  be- 
lief was  really  orthodox,  and  agreeable  with  the  Holy  Scrip- 
tures:" 2  vol.  Sewell,  471.  And  being  charged  with  some  so- 
cinian  notions,  a  short  confession  of  faith,  signed  by  one  and 
thirty  persons,  of  which  George  Whitehead  was  one,  was,  in 


JULY  TERM,  1832.  673 

Hendrickson  v.  Decow. 

December  following,  presented  to  the  parliament:  2  Sewell,  483, 
499  ;  1  vol.  Evid.  297  ;  3  Gough's  Hist.  386.  In  these  public 
declarations,  we  find  these  enumerated  doctrines  recognized  and 
avowed.  At  that  time,  and  afterwards,  the  society  of  Friends 
in  this  country,  acknowledged  the  London  yearly  meeting  as 
their  head,  and  appeals  were  taken  from  their  meetings  in  this 
country,  and  decided  there:  1  vol.  Evid.  95  ;  1  Proud's  Hist. 
Perm.  369. 

Of  their  early  writers,  none  seems  to  have  been  held  in  higher 
estimation  than  Robert  Barclay.  In  his  "  Apology,"*  purporting 
to  be  an  explanation  and  vindication  of  the  principles  and  doctrines 
of  the  people  called  Quakers,  these  principles  are  distinctly  exhibi- 
ted as  parts  of  their  faith. 

He  also  published  a  catechism  and  confession  of  faith,  which 
purport  to  contain  "  a  true  and  faithful  account  of  the  principles 
and  doctrines,  which  are  most  surely  believed  by  the  churches  of 
Christ,  in  Great  Britain  and  Ireland,  who  are  reproachfully  called 
by  the  name  of  Quakers."  In  these,  the  doctrines  above  men- 
tioned, are  most  fully  and  explicitly  taught  and  professed.  f 

It  is  in  evidence,  that  Barclay's  Apology,  and  his  Catechism 
and  Confession  of  Faith,  purporting  as  aforesaid,  have  been  pub- 
lished and  circulated  by  the  Philadelphia  yearly  meeting,  by  the 
use  of  its  own  funds,  and  as  their  minutes  express,  "  for  the  service 
of  truth,"  as  early  as  the  year  1701,  and  on  Several  occasions  since: 

1  vol.  Evid.  76,  297. 

There  is  much  other  evidence  laid  before  us,  by  documents  and 
witnesses,  confirming  that  which  I  have  thus  briefly  noticed. 
But  I  shall  pass  it  over,  merely  referring,  however,  to  the  letters 
from  Elias  Hicks  to  Phebe  Willis  and  Thomas  Willis,  written  in 
1818,  in  which  he  distinctly  intimates  that  the  society's  belief  of 
the  Scriptures,  and  of  the  divinity  of  Christ,  which  he  had  been,* 
taught  from  his  cradle,  whatever  was  his  belief  at  that  time,  was 
fully  in  accordance  with  the  pretensions  of  the  Orthodox  party;: 

2  vol.  Evid.  419,  420,  421. 


*  See  ninth  edition,  published  at  Philadelphia  in  1775,  pages  86,  139,  141,. 
203,  204,  211,  226,  572,  573,  574.    Also  in  his  "  Anarchy  of  the  Banters/*  pages 
1,  2,  3,  29,  30. 

f  See  pages  2,  5,  6,  7,  8,  9,  10,  11,  12,  13,  104,  106,  107,  108,  111,  134. 

2  U 


674  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

I  think  it  sufficiently  established,  that  these  doctrines  have  been 
avowedly  and  generally  held  by  the  society.  And,  indeed,  they 
have  treated  the  Scriptures  with  a  degree  of  reverence,  uncom- 
mon, even  among  christians.  Feeling  it  presumptuous  to  specu- 
late upon  what  is  obscure,  they  have,  in  doctrinal  matters,  adopt- 
ed its  explicit  language,  but  rejected  the  ingenious  deductions  of 
men;  they  have  been  unwilling  to  be  wise  above  what  is  writ- 
ten. And  in  matters  of  practice,  they  have  endeavored  to  apply 
its  precepts  literally  ;  and  this  is  the  foundation  of  their  peculiar 
testimonies. 

But  are  these  doctrines  essential?  There  is  strong  evidence 
of  this,  in  the  very  nature  of  the  doctrines  themselves.  When 
men  form  themselves  into  associations  for  the  worship  of  God, 
some  correspondence  of  views,  as  to  the  nature  and  attributes  of 
the  being  who  is  the  object  of  worship,  is  necessary.  The  dif- 
ference between  the  pagan,  the  mahometan,  the  Christian,  and 
the  Jew,  is  radical  and  irreconcilable.  The  two  latter  worship 
the  same  God ;  but  one  approaches  him  through  a  Mediator, 
whom  the  other  regards  as  an  imposter;  and  hence,  there  can 
be  no  communion  or  fellowship  between  them.  Christians  have 
become  separated  into  various  sects,  differing  more  or  less  in  their 
doctrines.  In  looking  at  the  history  of  these  sects,  I  am  by  no 
means  convinced  that  there  was,  in  the  nature  of  things,  any 
necessity  for  all  the  divisions  which  have  taken  place.  Many  of 
the  controversies  in  the  church,  have  doubtless  arisen  from  mi- 
nute and  subtile  distinctions  in  doctrine,  which  have  been  main- 
tained, not  only  with  much  ingenuity,  but  with  much  obstinacy 
and  pride;  and  which,  by  this  mixture  of  human  frailty,  have 
been  the  cause  of  angry,  and  often  bloody  dissensions.  And 
whenever  the  civil  government,  or  the  prevailing  party,  in  a  re- 
ligious society,  have  formed  creeds,  and  required  professions  of 
faith,  descending  to  these  minute  points,  it  has  necessarily  caused 
the  separation  of  those,  or  at  least  the  honest  part  of  them,  who 
could  not  believe  up  to  the  precise  line  of  orthodoxy.  -Hence,  no 
doubt,  many  separations  have  taken  place  in  churches,  upon 
points  of  doctrine,  which  would  never  have  disturbed  the  harmo- 
iiy  of  the  association,  had  not  public  professions  of  faith  been 
required,  descending  into  minute  and  non-essential  particulars. 


JULY  TERM,  1832.  675 


Hendrickson  v.  Decow. 


In  these  days,  many  Christians  find  themselves  able  to  unite  in 
worship  with  those  of  different  denominations,  and  to  forget  the 
line  of  separation  between  them.  But  although  unnecessary 
divisions  have  taken  place,  it  by  no  means  follows,  that  there  are 
not  some  points  of  faith,  which  must  be  agreed  in,  in  order  that 
a  religious  society  may  harmonize  in  their  public  worship  and 
private  intercourse,  so  as  to  experience  the  benefits  of  associating 
together.  Of  this  description,  is  the  belief  in  the  atonement  and 
divine  nature  of  Jesus  Christ.  He,  who  considers  Him  to  be 
divine;  who  addresses  himself  to  Him  as  the  Mediator,  the  Way, 
the  Creator,  and  Redeemer ;  who  has  power  to  hear,  and  to  an- 
swer, to  make  and  to  perform  his  promises,  cannot  worship  with 
him,  who  regards  Him  as  destitute  of  this  nature,  and  these  divine 
attributes.  Nor  can  the  latter  unite  in  a  worship  which  he  con- 
ceives to  be  idolatrous. 

And  with  respect  to  the  inspiration  of  the  Scriptures.  The 
belief  in  the  divine  nature  and  atonement  of  Jesus  Christ,  and 
indeed  of  the  Christian  religion  itself,  is  intimately  connected  with 
that  of  the  divine  authority  of  the  sacred  writings.  "Great  are 
the  mysteries  of  godliness."  And  of  all  the  truths  declared  in 
Holy  Writ,  none  are  more  mysterious  than  the  nature,  history, 
and  offices  of  Jesus  Christ.  The  mind  that  contemplates  these 
truths  as  based  on  mere  human  testimony,  must  range  in  doubt 
and  perplexity,  or  take  refuge  in  infidelity.  But  if  they  are  re- 
garded as  the  truth  of  God,  the  pride  of  human  reason  is  humbled 
before  them.  It  afterwards  exerts  its  powers  to  understand,  and 
to  apply,  but  not  to  overthrow  them.  Faith  may  repose  in  con- 
fidence upon  them,  and  produce  its  fruits  in  a  holy  life.  To  a 
people  like  the  Friends,  who  pay  so  much  attention  to  the  light 
within,  but  who  at  the  same  time,  acknowledge  the  deceitfulness 
of  the  human  heart,  and  the  imperfection  of  human  reason ; 
when  they  once  fix  their  belief  on  the  testimonies  of  Scripture, 
as  dictated  by  the  spirit  of  truth,  they  necessarily  become  pre- 
cious;  as  the  landmarks,  setting  bounds  to  principle  and  to  ac- 
tion ;  as  the  charts,  by  which  they  may  navigate  the  ocean  of 
life  in  safety;  as  the  tests,  by  which  they  may  examine  them* 
selves,  their  principles,  and  feelings,  and  learn  what  spirit  they 
are  of.  For,  in  the  language  of  Barclay,  "  they  are  certain, 


676  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

that  whatsoever  any  do,  pretending  to  the  spirit,  which  is  contra- 
ry to  the  Scriptures,  should  be  accounted  and  reckoned  a  delusion 
of  the  devil."  Hence,  their  book  of  discipline  earnestly  exhorts 
all  parents  and  heads  of  families,  to  cause  the  diligent  reading  of 
the  Scriptures  by  their  children;  (Disc.  100;)  to  instruct  them 
in  the  doctrines  and  precepts  there  taught,  as  well  as  in  the  belief 
of  the  inward  manifestation  and  operation  of  the  Holy  Spirit  up- 
on their  own  minds;  and  to  prevent  their  children  reading  books 
or  papers,  tending  to  create  the  least  doubt  of  the  authenticity  of 
the  Holy  Scriptures,  or  of  those  saving  truths  declared  in  them  : 
Disc.  12.  And  hence,  by  the  same  discipline,  ministers  are 
liable  to  be  dealt  with,  who  shall  misapply,  or  draw  unsound  in- 
ferences or  conclusions  from  the  text:  Ibid.  62.  And  a  periodi- 
cal inquiry  is  directed  to  be  made,  whether  their  ministers  are 
sound  in  word  and  doctrine :  Ibid.  95. 

I  have  before  said,  that  their  great  regard  for  the  scriptures, 
and  desire  to  comply  with  them  literally,  is  the  foundation  of 
their  peculiar  testimonies.  These  are  acknowledged  by  Decow 
and  his  party  to  be  essential,  and  a  departure  from  them  a  ground 
of  disownment :  1  vol.  Evid.  43,  385.  Does  not  a  strong  argu- 
ment result  from  this,  that  they  regard  the  Scriptures  as  divine 
truth,  and  that  this  belief  is  essential  ?  When  their  writers  would 
defend  these  testimonies,  they  do  not  refer  us  to  the  light  within. 
They  do  not  say  that  this  has  taught  them  that  oaths  are  unlaw- 
ful, &c.  But  they  point  to  passage  of  Scripture,  as  authority, 
and  undoubted  authority,  on  these  subjects.  But  why  are  ihey 
authority  ?  Because  they  are  the  truth  of  man  ?  No.  Friends 
spurn  at  the  dictation  of  their  equally  fallible  fellow  man.  But 
because  they  are  the  truth  of  God.  Or,  in  the  language  of  Fox, 
"  We  call  the  Holy  Scriptures,  as  Christ,  the  apostles,  and  holy 
men  of  God  called  them,  the  words  of  God :  2  vol.  Fox's  Jour. 
147  ;  1  vol.  Evid.  78.  Can  it  be  that  the  rejection  of,  or  non- 
conformity to,  particular  passages,  is  ground  of  disownment,  and 
yet  that  their  members  are  at  liberty  to  reject  the  whole?  What 
would  this  be  but  to  permit  their  fellow  men  to  select  and  garble 
as  they  please,  and  dictate  what  should  be  believed,  and  what  might 
be  disbelieved. 

These   testimonies  regard   the  practices  of  the  members.     Ro- 


JULY  TERM,  1832.  677 

Hendrickson  v.  Decow. 

bert  Barclay  did  not  consider  deviations  from  them,  as  the  sole 
causes  of  disownment.  He  says,  "  we  being  gathered  together 
into  the  belief  of  certain  principles  and  doctrines  ;  those  princi- 
ples and  doctrines,  and  the  practices  necessarily  depending  upon 
them,  are,  as  it  were,  the  terms  that  have  drawn  us  together, 
and  the  bond  by  which  we  become  centered  into  one  body  and 
fellowship,  and  distinguished  from  others.  Now,  if  any  one,  or 
more,  so  engaged  with  us,  should  arise  to  teach  any  other  doc- 
trine or  doctrines,  contrary  to  these  which  were  the  ground  of  our 
being  one,  who  can  deny,  but  the  body  hath  power,  in  such  a 
case,  to  declare  this  is  not  according  to  the  truth  which  we  pro- 
fess; and  therefore  we  pronounce  such  and  such  doctrines  to  be 
wrong,  with  which  we  cannot  have  unity,  nor  yet  any  more 
spiritual  fellowship  with  those  that  hold  them  ?  And  so  cut 
themselves  off  from  being  members,  by  dissolving  the  very  bond 
by  which  they  were  linked  to  the  body  :  Anarchy  of  the  Rant- 
ers, 54  to  59.  And  after  proving  the  soundness  of  these  views 
from  Scripture  and  reason,  he  concludes  as  follows:  "So  that 
from  all  that  is  above  mentioned,  we  do  safely  conclude,  that 
where  a  people  are  gathered  together  into  the  belief  of  the  prin- 
ciples and  doctrines  of  the  gospel  of  Christ,  if  any  of  that  people 
shall  go  from  those  principles,  and  assert  things  false  and  contra- 
ry to  what  they  have  already  received  ;  s^ich  as  stand  and  abide 
firm  in  the  faith,  have  power  by  the  spirit  of  God,  after  they  have 
used  Christian  endeavors  to  convince  and  reclaim  them,  upon 
their  obstinacy,  to  separate  such,  and  to  exclude  them  from  their 
spiritual  fellowship  and  communion.  For  otherwise,  if  these  be 
denied,  farewell  to  all  Christianity,  or  to  the  maintaining  of  any 
sound  doctrine  in  the  church  of  Christ."  And,  surely,  these  re- 
marks must  be  applicable  to  doctrines  as  radical  as  those  above 
stated. 

In  1722,  the  yearly  meeting  of  Philadelphia  issued  a  testi- 
mony, accompanying  Barclay's  catechism  and  confession  of  faith, 
which  they  styled  "  The  ancient  testimony  of  the  people  called 
Quakers,  revived  ;"  in  which,  -after  a  long  enumeration  of  evil 
practices  which  the  apostles  testified  against,  and  through  which 
some  fell  away,  they  add,  "  and  some  others,  who  were  then 
gathered  into  the  belief  of  the  principles  and  doctrines  of  the 


678  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

gospel  of  Christ,  fell  from  those  principles,  as  some  have  done  in 
our  day  ;  in  which  cases,  such  as  stood  firm  in  the  faith,  had 
power,  by  the  spirit  of  God,  after  Christian  endeavors  to  con- 
vince and  reclaim  these  backsliders,  to  exclude  them  from  our 
spiritual  fellowship  and  communion,- as  also  the  privileges  they 
had  as  fellow  members;  which  power  we  know  by  good  expe- 
rience, continues  with  us,  in  carrying  on  the  discipline  of  the 
church  in  the  spirit  of  meekness  :"  2  vol.  Evid.  11.  And  in  an- 
swer to  what  was  said  in  argument,  as  to  the  extent  of  the  dis- 
cipline appearing  in  its  introductory  paragraph,  I  would  observe 
that  this  testimony  was  issued  soon  after  that  introduction  com- 
mences, by  referring  to  it,  and  may  be  considered  as  in  a  mea- 
sure explanatory  of  it.  But  the  discipline  itself  is  not  silent  on 
this  subject.  Its  object  is  declared  to  be,  "  that  all  may  be  pre- 
served in  unity  of  fail fi  and  practice."  Now,  what  is  unity  of 
faith?  Does  it  not  require  unity  of  interpretation;  unity  of 
views,  of  the  meaning  of  texts  of  Scripture,  involving  important 
doctrines?  It  does  not  require  submission  to  the  dictation  of  oth- 
ers. But  it  does  require  an  accommodation  of  opinion  to  a  com- 
mon standard,  in  order  that  they  may  be  of  one  faith.  This  need 
not  extend  to  subordinate  matters  ;  but  liberal  as  the  society  has 
always  been  in  this  respect,  it  has  spread  before  its  members  the 
Catechism  and  Confession  of  Faith  and  Apology  of  Barclay,  as 
guides  to  opinion,  and  it  will  not  suffer  even  the  less  essential 
doctrines  there  promulgated,  to  be  questioned,  if  it  be  done  in  a 
contentious  or  obstinate  spirit,  without  subjecting  the  offender  to 
discipline.  This  is  plainly  indicated  in  the  testimony  above  referred 
to  :  Disc.  12.  And  with  respect  to  the  more  important  doctrines 
now  in  dispute,  the  discipline  expressly  says,  "  Should  any  deny 
the  divinity  of  our  Lord  and  Saviour  Jesus  Christ,  the  immediate 
revelation  of  Ike  Holy  Spirit,  or  the  authenticity  of  the  Scriptures  ; 
as  it  is  manifest  they  are  not  one  in  faith  with  us,  the  monthly 
meeting  where  the  party  belongs,  having  extended  due  care  for  the 
help  and  benefit  of  the  individual  without  effect,  ought  to  declare 
the  same,  and  issue  their  testimony  accordingly  :"  Disc.  23;  1  vol. 
Evid.  385. 

In  addition  to  all  this,  several  respectable  witnesses  testify  that 
the  denial  of  these  doctrines  has  always  been  held  to  be  ground 


JULY  TERM,  1832.  679 

Hendrickson  v.  Decow. 

of  disownment,  and  they  adduce  many  instances  of  actual  disown- 
ment  for  these  causes:  1  vol.  Evid.  60,  99,  108,  171,  306. 

Upon  reviewing  the  testimony,  I  am  satisfied  that  the  society  of 
Friends  regard  these  doctrines  as  essential,  and  that  they  have  the 
power,  by  their  discipline,  to  disown  those  who  openly  call  them 
in  question. 

But  do  the  Arch  street  meeting,  and  its  subordinate  meetings, 
hold  to  these  doctrines?  It  is  so  alleged;  and  it  is  not  denied. 
The  denial,  if  it  be  one  at  all,  is  that  these  are  established  doc- 
trines of  the  society  of  Friends.  The  controversies  between  the 
parties,  so  far  as  they  were  doctrinal,  show  that  the  party  called 
"  Orthodox  "  insisted  on  these  doctrines.  The  offensive  extracts 
of  the  meeting  for  sufferings,  declares  them  :  1  vol.  Evid.  217 ; 
2  vol.  Ibid.  414.  And  these  have  been  published  by  the  yearly 
meeting  of  that  party,  in  1828.  And  there  is  much  testimony  by 
witnesses,  that  the  Arch  street  meeting  adheres  to  them,  (1  vol. 
Evid.  60,  99,)  and  none  to  the  contrary. 

So  that  it  appears  to  me,  that  Hendrickson  has  sufficiently  es- 
tablished that  the  preparative  meeting  at  Chesterfield,  which  he 
represents,  may,  so  far  a*  respects  doctrine,  justly  claim  to  be  of 
the  society  of  Friends. 

But  it  is  insisted,  that  the  other  party  stands  on  equal  ground 
in  this  respect ;  that  they  are  now,  or^certainly  have  been,  in 
unity  with  that  society  ;  a  society  in  which  no  public  declaration 
of  faith  is  necessary  ;  and  that  hence,  independent  of  any  proof 
they  may  have  offered,  they  are  to  be  presumed  to  be  sound  in 
the  faith.  And  that  any  inquiry  into  their  doctrines,  further  than 
as  thoy  have  publicly  declared  them,  is  inquisitorial,  and  an  inva- 
sion of  their  rights  of  conscience. 

If  a  fact  be  necessary  to  be  ascertained  by  this  court,  for  the 
purpose  of  settling  a  question  of  property,  it  is  its  duty  to  ascertain 
it.  And  this  must  be  done  by  such  evidence  as  the  nature  of  the 
case  admits  of:  3  Merrivale,  411,  413,  417;  3  Dessaussure, 
557. 

I  have  already  stated,  that  the  answer  of  Decow  appeared  to 
me  indirectly  to  deny  that  (he  faith  of  Friends  embraces  the 
enumerated  doctrines  insisted  on  by  Hendrickson,  and  to  claim 
freedom  of  opinion  on  those  points.  I  feel  more  assured  that  this 


680  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

is  the  true  meaning  of  the  answer,  from  the  course  taken  in  the 
cross-examination  of  the  witnesses,  in  which  an  evident  effort 
appears,  to  show  a  want  of  uniformity  among  ancient  writers  of 
the  society,  when  treating  on  these  subjects ;  and  also,  from  the 
'grounds  taken  by  the  counsel  in  the  argument  of  this  cause.  It 
was  here  most  explicitly,  and  I  may  add,  most  ingeniously  and 
eloquently  insisted,  not  only  that  these  doctrines  do  not  belong  to 
the  faith  of  Friends,  but  that  they  cannot;  because  they  must 
interfere  with  another  acknowledged  fundamental  principle  of  the 
society — the  guidance  of  the  light  within.  Now  if  it  be -estab- 
lished, that  these  doctrines  are  part  of  the  religious  faith  of 
Friends,  can  it  be  necessary,  under  these  pleadings,  to  prove  that 
Decow's  party  do  not  hold  to  the  faith  of  Friends  ?  Decow  says, 
"  my  party,  or  preparative  meeting,  hold  the  faith  of  Friends,  but 
these  doctrines  are  no  part  of  that  faith  ;  therefore  we  do  not,  as 
Friends,  hold  to  these  doctrines."  But  Friends  do  hold  these  doc- 
trines: Decow's  party  does  not;  therefore  they  are  not  one,  with 
Friends,  in  religious  doctrine.  And  it  will  not  materially  vary 
the  argument,  that  they  are  at  liberty  to  hold  them,  or  not,  as  the 
light  within  shall  direct.  It  is  belief  which  gives  character  to  a 
sect,  and  right  of  membership  to  an  individual.  Liberty  has  the 
same  practical  effect  as  unbelief,  when  applied  to  an  essential  doc- 
trine of  a  religious  society.  An  individual  cannot  avail  himself 
of  his  faith  in  any  doctrine  which  he  is  at  liberty  to  believe  or  not. 
Were  it  otherwise,  we  might  all  be  members  of  any  religious  so- 
ciety whatever. 

But  as  I  may  have  mistaken  the  meaning  of  Decow's  answer, 
which  is  certainly  not  very  explicit  in  this  particular,  I  will  next 
turn  to  the  evidence,  and  discover,  if  I  can,  what  is  the  fair  result 
of  the  examination  of  that. 

Decow  offers  no  testimony  respecting  the  belief  of  his  party  in 
the  particular  doctrines  in  question.  His  witnesses  refuse  to  an- 
swer on  these  points,  (1  vol.  Evid.  387,  381,  406,475;  2  vol. 
Ibid.  13,  90,  206,)  and  his  party  protest  against  all  creeds,  or 
public  declarations  of  faith,  as  an  abridgment  of  Christian  liberty. 
Having  no  such  public  declaration  to  resort  to,  we  must  ascertain 
the  truth  from  other  sources,  so  far  as  it  is  necessary  to  be  ascer- 
tained. 


JULY  TERM,  1832.  681 


Hendrickson  v.  Decow. 


Several  public  addresses  were  issued  by  the  party  called  Hicksite, 
about  the  time  of  the  separation,  setting  forth  their  reasons  for  it. 
Ill  that  of  April  twenty-first,  1827,  it  is  declared  that,  "the  unity 
of  this  body  is  interrupted,  that  a  division  exists  among  us,  de- 
veloping in  its  progress,  views  which  appear  incompatible  with  each 
other,  and  feelings  averse  to  a  reconciliation.  Doctrines  held  by 
one  part  of  the  society,  and  which  we  believe  to  be  sound  and 
edifying,  are  pronounced  by  the  other  part  to  be  unsound  and 
spurious."  A  prominent  complaint,  in  these  papers,  is,  that 
Friends  travelling  in  the  ministry,  had  been  publicly  opposed  in 
their  meetings  for  worship,  and  labored  with,  contrary  to  the  dis- 
cipline. Upon  looking  into  the  testimony,  we  find  that  the  promi- 
nent individual  who  furnished  occasion  for  these  complaints,  is 
Elias  Hicks;  and  that  the  interruptions  and  treatment  of  him, 
deemed  exceptionable,  had  their  origin  in  the  doctrines  which  he 
preached  :  1  vol.  Evid.  308,  474,  478.  Can  it  be  denied,  then, 
that  differences  in  doctrine  existed,  and  differences  of  that 
serious  nature  calculated  to  destroy  the  unity  of  the  society,  and 
which  had  their  full  share  in  producing  the  separation  which  took 
place. 

Decow  has  introduced  several  witnesses,  who  testify,  and  no 
doubt  conscientiously,  that  they  believe  they  hold  the  ancient  faith 
of  Friends,  but  they  refuse  to  tell  us  what  this  faith  is,  in  refer- 
ence to  these  enumerated  doctrines.  We  cannot  give  much  weight 
to  opinion,  where  we  should  have  facts.  The  belief  should  refer 
to  specific  doctrines,  that  the  court  may  judge  as  well  as  the  wit- 
nesses, whether  it  was  the  ancient  faith  or  not.  The  court,  in  that 
case,  would  have  an  opportunity  of  estimating  the  accuracy  of  the 
knowledge  upon  which  the  belief  is  founded. 

How  stands  the  case,  then,  upon  the  proofs  ?  A  fund  was  cre- 
ated for  the  education  of  the  poor  children  of  a  certain  prepara- 
tive meeting  of  the  religious  society  of  Friends.  That  body  has 
lately  become  separated.  Its  unity  is  broken;  the  views  of  its 
members  are  incompatible;  and  doctrines  held  by  one  party 
to  be  sonnd,  are  pronounced  by  the  other  party  to  be  unsound. 
And  two  distinct  meetings  exist  at  this  time,  and  each  claims  the 
guardianship  and  use  of  this  fund.  For  the  safety  of  the  debtor, 
these  parties  have  been  directed  to  interplead,  and  to  show  their 


682  CASES  IN  CHANCERY. 


Hendrickson  v.  Decow. 


respective  pretensions  to  be  a  preparative  meeting  of  Friends. 
One  of  them  sets  out  certain  doctrines  as  characteristic  of  the 
society,  and  that  they  adhere  to  them,  and  that  the  other  party 
does  not.  They  go  on  and  prove  their  case,  so  far  as  respects 
themselves.  The  other  party  allege  that  they  hold  the  faith  of 
Friends ;  but  instead  of  proving  it,  they  call  upon  their  adversa- 
ries to  prove  the  contrary.  In  my  opinion,  it  was  incumbent 
upon  each  of  the  parties  to  make  out  their  case,  if  they  would 
stand  upon  equal  terms,  on  this  question  of  doctrine.  And  es- 
pecially upon  this  preparative  meeting,  connected  as  it  is  with  a 
yearly  meeting,  which,  in  point  of  form  at  least,  is  not  the  yearly 
meeting  that  was  in  existence  at  the  creation  of  the  fund  ;  and 
which  has  furnished  prima  facie  evidence  that  it  has  withdrawn, 
or  separated  from  that  meeting,  in  consequence  of  disputes  in  some 
measure  doctrinal.  The  court  will  not  force  either  party  in  this 
cause  to  declare  or  prove  their  religious  doctrines.  But  if  doc- 
trines be  important,  the  party  which  would  avail  themselves  of 
their  doctrines,  must  prove  them.  They  are  peculiarly  within 
their  knowledge,  and  although  they  may  have  the  right  to  with- 
hold them,  yet  if  they  do,  they  cannot  expect  success  in  their  cause. 
The  money  must  be  awarded  to  that  party  which  supports,  by 
proper  proof,  its  pretensions  to  it. 

Under  this  view  of  the  case,  I  deem  it  unnecessary  to  attempt 
any  further  investigation  of  the  doctrines  of  the  party  called 
Hicksite.  And  if  ascertained,  I  certainly  would  not  inquire,  as 
an  officer  of  this  court,  whether  they  are  right  or  wrong.  It  is 
enough,  that  it  is  not  made  to  appear  that  they  correspond  with  the 
religious  faith  of  the  society  of  Friends. 

I  would  merely  add,  that  if  it  be  true,  that  the  Orthodox 
party  believe  in  the  doctrines  above  mentioned,  and  the  Hicksite 
party  consider  that  every  member  has  a  right  to  his  own  belief 
on  those  subjects,  they  well  might  say  that  their  differences  were 
destructive  of  their  unity.  If  their  members  and  ministers  ex- 
ercise perfect  freedom  of  thought  and  speech  on  these  points, 
their  temples  for  worship,  and  it  is  to  bo  feared,  their  own  hearts, 
would  soon  be  deserted  by  the  peace-loving  spirit  of  their  Mas- 
ter. There  is  an  essential  incompatibility  in  adverse  views,  with, 
regard  to  these  doctrines.  The  divinity  of  Christ,  and  the  au- 


JULY  TERM,  1832.  683 


Plendrickson  v.  Decow. 


thenticity  of  the  Scriptures,  cannot  be  debated  in  a  worshipping 
assembly,  without  defeating  the  proper  purposes  of  meeting  to- 
gether. 

And   upon  this  supposition,  too,  the  propriety,  as  well  as  le- 
gality, of  this  court's  noticing    the  doctrines   of  the   preparative 
meeting,  which   is   to  superintend  the  expenditure  of  this  fund,  is 
too  manifest  to  admit  of  doubt.     We  have  already  seen,  by  re- 
ference to  the  discipline  of  this  society,   with   what   earnestness 
they  endeavor  to  educate  their  children   in   the   knowledge  and 
belief  of  the  Scriptures;  and  whoever  looks  into  that  discipline, 
cannot   but  discover  their  anxiety  to  train   them  up   in   their  own 
peculiar  views  of  the  Christian  religion.     To  effect  these  purposes, 
their  yearly  meeting  has  directed   their  attention  to  the  subject  of 
schools.     "  The  education  of  our  youth,"  says  the  discipline,  "  in 
piety  and  virtue,  and   giving  them   useful   learning  under  the  tui- 
tion of  religious,  prudent  persons,  having  for  many  years  engaged 
the  solid   attention   of  this   meeting,  and  advices  thereon  having 
been   from  time  to  time  issued  to  the  several  subordinate  meet- 
ings, it  is  renewedly  desired,  that  quarterly,  monthly  and   prepa- 
rative meetings  may  be  excited  to  proper  exertions  for  the  institu- 
tion and  support  of  schools ;  for  want  of  which,  it  has   been   ob- 
served,  that  children  have  been  committed    to  the  care  of   tran- 
sient persons  of  doubtful  character,  and  sometimes  of  very  cor- 
rupt  minds."     "  It  is,  therefore,   indispensably   incumbent  on  us, 
to  guard   them  against  this  danger,  and  procure  such  tutors,  of 
our   own    religious  persuasion,   as   are    not   only   capable    of  in- 
structing them  in  useful  learning,  to  fit  them  for  the  business  of 
this    life,    but  to  train  them  in    the  knowledge  of   their  duty  to 
God,  and  one  towards  another."     Under   this  discipline,  and  by 
the    exertions    of   superior    meetings,    (2    vol.    Evid.    345,   346, 
436,  437,)  as  we-11  as  of  the  members  of  the  Chesterfield  prepa- 
rative   meeting,  this  school  as  Crosswicks    was   established,   and 
this  fund  raised  for  its  support.     It  thus  appears,  that  the  fund 
was  intended  to  promote,  not  merely  the  secular  knowledge  of 
the  pupils,  but  their  growth  in  the  religious  principles  deemed 
fundamental  by  this  people;  or  at  least,  to  prevent,  through  the 
instruction    of   teachers  of   other  religious  principles,  or  wholly 
without  principle,  the  alienation  of  the  minds  of  their  children 


684  CASES  IN  CHANCERY. 

Hendrickson  v.  Decow. 

from  the  faith  of  their  fathers.  Could  these  meetings,  and  these 
contributors,  have  contemplated  that  this  fund  should  fall  into 
the  hands  of  men  of  opposite  opinions,  or  of  no  opinions?  Could 
those  men,  who  acknowledged  the  obligation  of  this  discipline, 
enjoining,  as  it  does,  upon  parents  and  heads  of  families,  "to 
instruct  their  children  in  the  doctrines  and  precepts  of  the  Chris- 
tian religion,  as  contained  in  the  Scriptures,"  and  "to  prevent 
their  children  from  having  or  reading  books  and  papers,  tending 
to, prejudice  the  profession  of  the  Christian  religion,  or  to  create 
the  least  doubt  concerning  the  authenticity  of  the  holy  Scrip- 
tares,  or  of  those  saving  truths  declared  in  them,  lest  their  infant 
and  feeble  minds  should  be  poisoned  thereby;"  I  say,  is  it  possi- 
ble such  men  could  have  expected  that  their  children  should  be 
taught  by  Elias  Hicks,  that  the  Scriptures  "have  been  the  cause 
of  four-fold  more  harm  than  good  to  Christendom,  since  the 
apostles'  days ;"  and  that  "to  suppose  a  written  rule  necessary, 
or  much  useful,  is  to  impeach  the  divine  character?"  Or,  that 
they  should  be  taught  by  him,  or  by  any  one  else,  that  each  in- 
dividual must  interpret  them  for  himself,  entirely  untrammelled 
by  the  opinions  of  man ;  and  that  the  dictates  of  the  light  with- 
in are  of  paramount  authority  to  Scripture,  even  when  opposing 
its  precepts?  Surely  this  would  be  a  breach  of  trust,  and  a  per- 
version of  the  fund,  which  the  arm  of  this  court  not  only  has,  but 
ought  to  have,  power  to  prevent. 

I  would  not  be  understood  to  impute  the  doctrines  of  Elias 
Hicks  to  that  party  which  unwillingly  bears  his  name.  Nor  do 
I  mean  to  intimate  that  they  would  abuse  this  trust.  But  I  have 
endeavored  to  show,  that  doctrines  may  justly  have  an  influence 
on  the  decision  of  the  question  now  before  us.  And  without 
coming  to  any  conclusion  with  respect  to  their  doctrines,  I  am  of 
opinion  that  this  fund  should  be  awarded  to  that  meeting  which 
has  shown,  at  least  to  my  satisfaction,  that  they  agree  in  doc- 
trine with  the  society  of  Friends,  as  it  existed  at  the  origin  of  this 
trust. 

I  do,  therefore,  respectfully  recommend  to  his  excellency  the 
chancellor,  to  decree  upon  this  bill  of  interpleader,  that  the  prin- 
cipal and  interest  due  on  the  said  bond,  of  right  belong,  and  are 
payable  to,  the  said  Joseph  Hendrickson  ;  and  that  he  be  permit- 


JULY  TERM,  1832.  685 

Ex'rs  of  Wanmaker  v.  Van  Buskirk  et  al. 

ted  to  proceed  on  his  original   bill  of  complaint,  or  otherwise,  ac- 
cording to  the  rules  and  practice  of  the  court  of  chancery. 

GEORGE  K.  DRAKE. 

THE  CHANCELLOR  decreed  accordingly,  ih  favor  of  Hendrick- 
son  the  complainant,  for  foreclosure  and  sale  of  the  mortgaged 
premises,  according  to  the  prayer  of  the  original  bill. 

CITED'  in  Den,  Amer.  Primitive  Soe.  v.  Pilling,  4  Zab.  677;  Exr.  of  Condict  v. 
King,  2  Seas.  333 ;  AFFIRMED,  Hal.  Dig.  219. 


CHRISTIAN  WANMAKER,  HENRY  R.  WANMAKER  AND  DAVID 
I.  CHRISTIE,  EXECUTORS  OF  RICHARD  D.  WANMAKER,  DE- 
CEASED, v.  CORNELIA  VAN  BUSKIRK,  PAUL  VAN  BUSKIRK, 
A  MINOR,  STEPHEN  HEMMION  AND  HANNAH,  UX.,  HARMA- 
NUS,  GOETCHIUS,  AND  FANNY,  UX.,  AND  WILLIAM  W.  RAM- 
SAY AND  MARGARET,  UX. 


The  testator  was  accustomed,  upon  the  marriage  of  his  daughters,  to  advance  to 
their  husbands  one  hundred  and  fifty  dollars  each,  and  take  from,  them  an 
obligation  for  the  payment  of  the  same,  without  interest;  with  an  under- 
standing, that  it  was  to  be  collected  for  the  benefit  of  the  children  of  his 
said  daughters  in  case  their  husbands  survived  them ;  but  if  the  wife  sur- 
vived the  husband,  payment  was  not  to  be  required  of  his  representatives, 
and  the  obligation  was  to  be  considered  as  cancelled.  This  was  strictly  an 
advancement;  a  gift  to  be  accounted  for,  as  part  of  the  share  of  the  daugh- 
ter, to  preserve  equality  in  the  distribution  of  the  testator's  estate. 

This  cannot  be  considered  a  debt,  the  money  not  being  wanted  to  satisfy  claims 
against  the  estate ;  but  the  daughter  having  survived  her  husband,  and  the 
testator  having  devised  all  his  personal  property  amongst  his  children, 
equally ;  to  preserve  such  equality,  this  advancement  must  be  brought  in 
by  the  executor  as  constituting  part  of  the  estate. 

But  though  a  bond  taken  for  this  advancement,  and  including  a  farther  sum  paid 
by  the  testator  for  his  son-in-law,  be  secured  by  a  mortgage  on  his  real  es- 
tate, which  descended  to  his  children ;  it  is  not  necessary  that  the  money 
should  be  collected  on  the  mortgage,  merely  to  be  paid  over  to  the  widow : 
the  executor  may  consider  it  as  part  of  her  share  of  her  father's  estate. 

Semble.  That  an  advancement  bears  no  interest. 

A  bond  and  mortgage,  being  sealed  instruments,  import,  prima  facie,  a  valuable 
consideration  ;  yet  the  defendants  are  at  liberty  to  inquire  into  the  considera- 
tion ;  but  the  onus  probandi  is  on  them,  and  unless  they  can  impeach  it,  the 
instruments  must  stand. 


686  CASES  IN  CHANCERY. 

Ex'rs  of  Wanmaker  v.  Van  Buskirk  et  al. 

Connected  with  the  facts,  that  no  interest  was  paid  and  no  demand  made,  length 
of  time  may  be  set  up  to  show  that  nothing  was  due,  as  well  as  to  raise  a 
presumption  of  payment. 

A  non-claim  for  twenty  years,  when  the  parties  are  in  the  way  and  there  is  oppor- 
tunity for  asserting  life  demand,  is  strong  evidence  against  the.  existence  of  a 
debt. 

Still  it  is  but  a  presumption  ;  and  the  fact  that  the  parties  interested  were  nearly 
related,  and  the  collection  of  the  money  might  have  occasioned  distress,  and 
even  the  payment  of  interest  inconvenience,  taken  in  connection  with  the 
fact,  that  part  of  the  money  included  in  the  mortgage  was  an  advancement, 
and  not  to  be  repaid,  is  sufficient  to  repel  it. 

To  authorize  a  court  to  say,  from  mere  lapse  of  time,  unless  very  extraordinary, 
that  a  debt  never  existed,  there  should  be  no  repelling  or  explanatory  cir- 
cumstances: it  requires  a  stronger  case  than  one  which  will  justify  the  court 
in  deciding  that  a  debt,  once  due,  has  been  satisfied  or  released. 

Yet  where  length  of  time  is  relied  on  as  evidence  of  payment,  it  may  be  repelled 
by  showing  that  the  party  was  a  near  relation,  or  was  insolvent. 

The  statute  of  limitation  does  not,  in  its  terms,  apply  to  courts  of  equity;  but 
they  have  always  felt  themselves  bound  by  its  principles,  and,  except  in  mat- 
ters of  strict  trust,  and  matters  purely  equitable,  have  acted  in  conformity 
with  them. 

If  for  a  debt  on  simple  contract,  the  creditor  chooses  to  go  into  a  court  of  equity, 
the  defendant  shall  have  the  benefit  of  the  statute  in  that  court,  as  well  as  a 
court  of  law. 

As  to  mortgages,  the  presumption  of  payment  may  be  raised  by  lapse  of  time 
without  interest  being  paid  or  demanded  ;  but  what  shall  be  a  sufficient 
length  of  time  to  raise  such  presumption  has  not  been  clearly  settled. 

The  better  opinion  appears  to  be,  that  such  a  presumption  would  attach  at  the 
ehd  of  twenty  years  without  payment  or  demand  of  principal  or  interest;  but 
admitting  this  to  be  the  rule,  it  is  but  a  presumption,  and  may  be  repelled 
by  a  variety  of  circumstances. 

The  situation  of  the  parties,  the  mortgagor  having  married  the  daughter  of  the 
mortgagee,  and  had  issue,  is,  of  itself,  sufficient  to  repel  the  presumption. 

As  to  the  declarations  of  a  deceased  party,  the  evidence  of  one  having  better  op- 
portunity of  information,  and  to  whom  the  deceased,  from  hi*  intimate  con- 
nexion, would  have  been  more  likely  to  have  communicated  freely,  is  en- 
titled to  greater  weight  than  that  of  a  stranger. 


The  pleadings  present  the  following  case.  The  complainants 
seek  to  recover  upon  a  mortgage,  given  by  Paul  Van  Buskirk,  in 
his  life-time,  to  Richard  D.  Wanmaker,  the  testator,  in  the  penal 
sum  of  seven  hundred  and  seventy-four  dollars  and  seventy-two 
cents,  conditioned  for  the  payment  of  three  hundred  and  eighty- 
seven  dollars  and  thirty-six  cents,  in  one  year  from  the  date,  and 


JULY  TERM,  1832.  687 

j_r_  *      __.. jji_r  _____  ^ _          _^ 

Ex'rs  of  Wanmaker  v.  Van  Buskirk  et  al. 

dated  on  the  1st  day  of  May,  1806.  They  allege  that  upon  this 
mortgage  nothing  has  been  paid  for  principal  or  interest;  and 
that  the  mortgage  itself  is  unsatisfied  and  in  force.  . 

The  defendants  are  the  heirs  at  law  of  the  mortgagor,  and  they 
resist  the  payment  of  the  mortgage  on  a  variety  of  grounds. 

In  the  first  place,  they  deny  that  there  was  any  thing  due  on 
the  mortgage  at  the  time  of  the  testato'r's  death,  or  that  it  was 
originally  taken  for  the  purpose  of  securing  any  actual  claim 
against  the  mortgagor.  They  allege  that  Paul  Van  Buskirk,  the 
mortgagor,  now  deceased,  married  Catharine,  a  daughter  of  the 
said  Richard  D.  Wanmaker,  the  mortgagee ;  that  the  said  Richard 
was  accustomed,  upon  the  marriage  of  his  daughters,  to  advance 
to  their  husbands  one  hundred  and  fifty  dollars,  and  take  from 
them  an  obligation  for  the  payment  of  the  same,  without  interest; 
with  an  understanding  that  it  was  to  be  collected,  for  the  benefit 
of  the  children  of  his  said  daughters  respectively,  in  case  their 
husbands  survived  them;  but  if  the  wife  survived  the  husband, 
the  payment  was  not  to  be  required  from  their  representatives,  but 
the  obligation  was  to  be  considered  as  cancelled.  That  one  hun- 
dred and  fifty  dollars  of  the  money  mentioned  in  the  mortgage, 
was  for  the  advance  made  by  the  said  testator  to  his  son-in-law,  at 
the  time  of  the  intermarriage  with  his  daughter.  That  the  mort- 
gage was  taken,  as  they  have  always  understood,  to  secure  the 
property  for  the  benefit  of  the  said  daughter  and  her  children  ; 
and  to  prevent  the  said  Paul  Van  Buskirk,  who  was  an  intem- 
perate man,  from  squandering  it;  and  that  there  was  never  any 
thing  actually  due  upon  it. 

In  the  second  place,  they  set  up  the  statute  of  limitations  in 
bar  of  the  claim,  and  pray  the  benefit  of  it,  as  though  it  had  been 
pleaded. 

Again,  they  allege  that  as  the  mortgage  bears  date  on  the  1st  of 
May,  1806,  and  the  money  mentioned  in  it  was  payable  on  .the  1st 
day  of  May,  1807  ;  and  as  no  payment  has  ever  been  made  on  the 
mortgage;  and  the  mortgagor,  and  those  holding  under  him,  have 
always  been  in  the  peaceable  and  quiet  possession  of  the  premises ; 
it  is  to  be  presumed  that  the  mortgage  has  been  in  some  way  re- 
leased or  satisfied,  or  that  it  was  taken  and  held  for  some  purpose 
other  than  the  security  of  money. 


688  CASES  IN   CHANCERY. 

Ex'rs  of  Wanmaker  v.  Van  Buskirk  et  al. 

Depositions  and  proofs  were  taken,  which  are  noticed  in  the 
opinion  of  the  court.  The  cause  was  argued  by 

P.  Dickerson,  for  complainants ; 

J.  C.  Hornblower,  and  E.  B.  D.  Ogden,  for  defendants. 
i 

Cases  cited :— 1  Eden,  358  ;  7  John.  (7.113;  1  Paige  (7.239; 
6  John.  C.  266 ;  2  John.  C.  750 ;  1  Paige  C.  100 ;  10  Wheat.  R. 
168,  177,  n.;  3  Bro.  C.  C.  289;  5  John.  C.  545;  16  John.  R. 
214 ;  9  Wheat.  490,  497  ;  2  JOG.  &  Walk.  227. 

THE  CHANCELLOR.  The  evidence  taken  in  this  case  shows 
conclusively,  that  it  was  the  custom  of  Mr.  Wanmaker,  the  tes- 
tator, to  advance  to  his  daughters,  on  their  marriage,  the  sum 
of  sixty  pounds,  or  one  hundred  and  fifty  dollars  ;  and  there  can 
be  no  doubt  that, this  amount  was  advanced  to  Van  Buskirk,  the 
mortgagor,  and  husband  of  his  daughter  Catharine.  It  was  his 
practice  also,  to  take  something  to  show  for  the  advancement, 
that  his  estate  might  be  thereafter  the  better  equalized  and  settled 
among  his  children.  He  gave  one  hundred  and  fifty  dollars  to 
Andrew  Hemmion,  who  married  the  eldest  daughter,  and  took 
from  him  a  bond  for  the  payment  of  it.  He  told  Garret  W. 
Hopper  that  he  meant  to  do  the  same  by  his  other  daughters 
when  they  married  ;  and  we  find  that  when  David  I.  Christie 
married  another  daughter,  he  gave  bond  for  the  like  sum  advan- 
ced to  him.  He  afterwards  told  John  Maysinger,  another  witness, 
that  he  had  given  to  each  of  his  daughters  sixty  pounds.  The  evi- 
dence shows,  also,  that  this  sixty  pounds  was  included  in  the  mort- 
gage ;  and  the  reason  for  taking  the  mortgage,  was,  that  the  pro- 
perty might  be  saved  for  the  family,  as  Van  Buskirk  was  a  drink- 
ing man  and  might  spend  it. 

This  was  strictly  an  advancement ;  a  gift  to  be  accounted  for; 
or,  as  the  testator  expressed  it,  a  part  of  the  share  of  his  daugh- 
ter. It  was  a  family  arrangement  by  no  means  uncommon  in 
our  state,  entered  into  with  proper  motives,  designed  to  advance 
the  welfare  of  all,  and  to  preserve  that  equality  which  is  so  ne- 
cessary to  the  peace  of  families.  It  cannot  be  considered  as  a 
debt,  especially  in  this  case  when  it  is  not  wanted  for  the  pay- 


JULY  TERM,  1832.  689 

Er'rs  of  Wanmaker  v.  Van  Buskirk  et  al. 

ment  of  any  claims  against  the  estate.  If  this  were  a  case  in 
which  creditors  were  interested,  it  might  present  a  different  ques- 
tion. 

The  bond  was,  nevertheless,  rightly  brought  into  the  estate  by 
the  executors.  For  certain  purposes,  it  must  be  considered  as 
constituting  a  part  of  the  estate.  The  testator,  by  his  will,  divided 
all  his  personal  property  among  his  children  equally.  To  pro- 
duce this  equality,  it  is  necessary  that  the  advancements  be 
brought  in  :  and  such  was  the  intention  of  the-  testator.  But 
there  is  no  necessity  that  the  money  be  collected  upon  this  mort- 
gage, which  is  only  a  collateral  security.  The  mortgaged  prem- 
ises have  descended  to  the  children  of  the  mortgagor ;  and  it 
might  be  unjust  for  them  to  pay  this  money  into  the  estate, 
merely  that  it  may  be  paid  over  to  the  widow  of  the  mortgagor. 
The  executors  will  consider  it  as  part  of  the  share  of  Catharine 
the  daughter ;  and  if  she  should  refuse  to  receive  it  as  such,  the 
complainants  have  another  remedy. 

The  principal  question  in  this  controversy  relates  to  the  residue 
of  the  consideration  money  mentioned  hi  the  mortgage. 

The  defendants  contend  that  it  was  never  due;  that  there  was 
no  indebtedness  on  the  part  of  Van  Buskirk  ;  and,  of  course,  thafe 
the  mortgage  was  voluntary,  and  cannot  now  be  enforced  against 
this  property.  This  allegation  must  be  satisfactorily  sustained' 
on  their  part.  The  bond  and  mortgage  are  sealed  instruments, 
and  of  themselves  import,  prima  facie,  a  valuable  consideration. 
The  defendants  are  at  liberty  to  inquire  into  this  consideration. 
But  the  onus  probandi  is  upon  them,  and  unless  they  can  impeach 
it,  the  instrument  must  stand. 

Several  circumstances  are  relied  on  by  the  defendants  as  rais- 
ing a  strong  presumption  that  the  mortgage  was  intended  simply 
to  cover  the  property.  Among  them  are  these :  that  the  mortgage 
was  not  executed  by  the  wife  of  the  mortgagor ;  that  the  mort- 
gagor always  remained  in  possession  of  the  mortgaged  premises; 
that  there  was  no  demand  of  payment;  and  that  no  interest  was 
ever  paid.  All  these  are  susceptible  of  very  reasonable  explana- 
tion. The  seciirity  was  ample  for  the  amount,. without  the  con- 
currence of  the  wife  in  the  mortgage,  and  as  she  was  a  daughter 
of  the  mortgagee,  the  omission  is  very  readily  accounted  for., 

2x 


600  CASES  IN  CHANCERY. 

Ex'rs  of  Wanmaker  v.  Van  Buskirk  et  al. 

The  fact  that  the  mortgaged  premises  remained  in  possession  of 
the  mortgagor,  is  not  entitled  to  much  weight;  of  itself  it  proves 
nothing,  for  this  is  the  uniform  practice  of  the  country.  The 
only  circumstances  that  are  calculated  to  create  any  thing  like 
doubt,  are  the  lapse  of  time,  connected  with  the  facts  that  no  in- 
terest was  paid  and  no  demand  made.  Length  of  time  may  be 
set  up  to  show  that  nothing  was  due,  as  well  as  to  raise  a  pre- 
sumption of  payment :  Christopher  a  v.  Sparks,  2  J.  &  W.  233. 
And  it  is  well  remarked  by  the  court  in  that  case,  that  a  non- 
claim  for  twenty  years,  when  the  parties  are  in  the  way,  and 
there  is  every  opportunity  for  asserting  the  demand,  is  strong  evi- 
dence against,  the  existence  of  a  debt.  Still  it  is  but  a  presump- 
tion ;  and  the  fact  that  in  this  case  the  parties  interested  are 
nearly  related,  and  that  the  collection  of  the  money  might  have 
occasioned  distress,  and  even  the  payment  of  interest  inconve- 
nience; taken  in  connection  with  the  circumstance  that  a  part 
of  the  money  mentioned  in  the  mortgage  was  an  advancement, 
and  not  to  be  paid,  is  sufficient  to  repel  it.  To  authorize  a  court 
to  say,  from  the  mere  lapse  of  time,  unless  that  lapse  should  be 
very  extraordinary,  that  a  debt  never  existed,  there  should  be 
no  repelling  or  explanatory  circumstances.  It  requires  a  stronger 
case  than  one  which  will  justify  the  court  in  deciding,  that  a  debt 
once  due  has  been  satisfied  or  released.  And  yet,  in  cases  where 
length  of  time  is  relied  on  us  evidence  of  payment,  it  may  be  re- 
pelled by  showing  the  fact  that  the  party  was  a  near  relation:  Hil- 
lary v.  Waller,  12  Ves.  266. 

The  defendants  insist,  however,  that  there  is  direct  evidence 
to  prove  that  nothing  was  ever  due.  It  is  shown,  that  Van  Bus- 
kirk  was  an  intemperate  man.  That  the  old  gentleman,  his 
father-in-law,  should  distrust  him,  and  take  some  measures  to 
secure  the  property  for  the  family,  is  not  at  all  unnatural.  ,He 
well  knew,  that  intemperance  was  the  precursor  of  profligacy, 
degradation  and  ruin.  The  evidence  of  Garret -W.  Hopper  ex- 
plains why  the  mortgage  was  taken.  It  was  that  Van  Buskirk 
should  not  make  away  with  it  in  a  drunken  frolic ;  but  it  does  not 
prove  that  the  mortgage  was  voluntary  and  without  considera- 
tion. Wanmaker  told  Hopper,  that  he  had  taken  a  mortgage 
from  Van  Buskirk  on  the  whole  of  his  land,  to  save  the  property 


JULY  TERM,  1832.  691 

Ex'rs  of  Wan  maker  v.  Van  Buskirk  et  al. 

for  his  wife  and  children.  This  does  not  necessarily  mean  that 
there  was  nothing  due  on  the  mortgage;  it  may  well  mean  that 
he  had,  in  addition  to  the  bond  for  the  money  due,  taken  a 
mortgage  on  the  property,  which  he  would  not  have  done,  but 
for  the  fear  that  Van  Buskirk  would  part  with  his  property,  and 
his  family  be  turned  out  of  doors.  The  testimony  of  May  singer 
is  susceptible  of  the  same  explanation.  And  although  Garret 
M.  Van  Riper  swears  expressly,  that  Wanrnaker  told  him  his 
son-in-law  did  not  owe  him  any  thing,  but  he  kept  the  mortgage 
for  the  children  ;  yet  I  think  that  evidence,  considering  the  cir- 
cumstances under  which  it  was  given,  is  entirely  overcome  by 
that  of  Andrew  Hemmion,  who  had  been  connected  in  the  fam- 
ily, and  was  necessarily  acquainted  with  its  concerns,  and  to 
whom  Wanmaker  would  be  more  likely  to  communicate  on  such 
a  subject,  than  to  a  stranger.  He  told  Hemmion  that  he  had 
advanced  more  money  to  Van  Buskirk ;  that  he  had  helped  him 
to  money  several  times,  and  had  taken  a  mortgage  to  secure  the 
whole. 

Taking  all  the  testimony  together,  it  is  at  best  of  doubtful 
character;  and  I  do  not  feel  willing,  upon  the  strength  of  it,  to 
declare  the  mortgage  void  for  want  of  consideration. 

The  defendants  insist,  in  the  next  place,  that  from  the  lapse  of 
time  the  mortgage  must  be  presumed  to  be  paid  and  satisfied. 

The  mortgage  was  given  on  the  1st  of  May,  1807.  The  bill 
was  filed  on  the  29th  of  March,  1830;  making  a  period  of  nearly 
twenty-three  years,  during  which  no  interest  was  paid,  nor  was  the 
money  ever  demanded  so  far  as  is  known. 

The  statute  of  limitations  does  not  apply,  in  terms,  to  courts  of 
equity;  but  it  is  well  known,  that  they  have  always  felt  themselves 
bound  by  the  principles  of  the  statute;  and  except  in  cases  of  strict 
trust,  and  matters  purely  equitable  in  their  nature,  have  acted  in 
conformity  with  them.  With  respect  to  debts  on  simple  contract, 
if  they  can  be  enforced  in  equity  as  well  as  at  law,  and  the  creditor 
chooses  to  go  into  a  court  of  equity,  the  defendant  shall  have  the 
benefit  of  the  statute  of  limitations  in  that  court  as  well  as  in  a 
court  at  law.  In  such  cases,  the  law  of  both  courts  is  the  same, 
and  justly  so,  for  otherwise  the  statute  might  be  eluded  :  Roosevett, 
v.  Mark,  6  John.  C.  E.  266. 


692  CASES  IN  CHANCERY. 

Ex'rs  of  Wanmaker  v.  Van  Buskirk  et  al. 

As  it  regards  mortgages,  the  presumption  of  payment  may  be 
raised  by  lapse  of  time,  without  interest  being  paid,  or  demand 
made ;  but  what  shall  be  a  sufficient  length  of  time,  has  not  been 
clearly  settled. 

In  Hele  v.  Jlele,  2  Ch.  Ca.  28,  a  mortgage  sixty  years  old 
was  held  to  be  satisfied ;  but  there  were  circumstances  to  induce 
a  presumption  that  it  was  paid.  In  1  CA.  Ca.  59,  Sibon  v. 
Fletcher,  the  court  presumed  payment  of  a  mortgage  after  a 
much  shorter  period,  on  the  particular  circumstances  of  the  case. 
The  point  was  raised  in  Leman  v.  Newnham,  1  Ves.  51,  which 
was  a  suit  for  foreclosure.  The  defendant  insisted,  that  as  there 
had  been  no  payment  of  principal  or  interest  for  twenty  years, 
the  p.resumption  was  that  the  mortgage  was  satisfied,  and  liken- 
ed the  case  to  an  ejectment.  Ld.  Hardwicke  said,  that  in  com- 
mon cases  it  was  so,  but  not  in  mortgages,  because  the  mortga- 
gee shall  be  supposed  continuing  in  possession,  and  the  mort- 
gagor's possession  shall  be  his,  being  tenant  at  will  to  him.  He 
said  also,  there  was  strong  evidence-  that  the  money  had  not 
been  paid.  The  next  case  was  Toplis  v.  Baker,  in  'the  exche- 
quer, 2  Cox,  118.  The  court  there  said,  there  was  no  general 
rule  for  presuming  a  mortgage  satisfied  from  the  non-payment  of 
interest  for  twenty  years.  In  Trask  v.  White,  decided  in  the 
court  of  chancery  (3  Bro.  C.  C.  289,)  Ld.  Thurlow  appeared 
to  be  of  opinion,  that  where  it  was  clear  interest  had  not  been 
paid  for  twenty  years,  and  no  demand  made,  he  had  always 
understood  it  raised  the  presumption  that  the  principal  was  paid. 
In  that  case,  he  thought  the  presumption  on  a  mortgage  as  strong 
as  that  at  law.  The  cause  was  not  decided  upon  that  point,  but 
it  was  referred  to  a  master  to  inquire  whether  any  interest  had 
been  paid.  The  master  of  the  rolls,  in  Christopher  v.  Sparks, 
already  cited,  (2  J.  &  W.  235,)  holds  the  opinion,  that  twenty 
years  non-claim  is  strong  evidence  even  against  the  existence  of 
a  debt.  In  reviewing  the  cases,  he  questions,  and  I  think  very 
justly,  the  doctrine  held  in  Toplis  v.  Baker,  and  Leman  v. 
Newnham,  that  a  presumption  of  payment  would  not  attach  in 
favor  of  a  mortgagor  in  possession,  because  he  is  considered  ten- 
ant at  will  to  the  mortgagee;  and  supports  the  doctrine  of  Ld. 
Thurlow,  that  mortgages  and  bonds  stand  on  the  same  footing 


JULY  TERM,  1832.  693 

Ex'rs  of  Wanmaker  v.  Van  Buskirk  et  al. 

in  respect  to  the  presumption  arising  from  non-payment  of  in- 
terest. 

In  New- York,  chancellor  Kent  decided  that  a  mortgage  of 
forty  years  standing,  on  which  there  had  been  neither  payment 
nor  demand  of  in.terest,  should  be  presumed  satisfied :  Giles  v. 
Jjaremore,  5  John.  C.  R.  545. 

From  all  these  decisions,  there  can  be  no  doubt  that  a  presump- 
tion of  payment  may  be  raised  by  lapse  of  time,  against  a  mort- 
gage; and  the  better  opinion  would  seem  to  be,  that  such  presump- 
tion would  attach  at  the  end  of  twenty  years,  by  analogy  to  the 
rule  relating  to  bonds.  Chancellor  Kent,  in  the  case  cited,  appears 
to  favor  this  opinion,  and  to  incline,  with  the  master  of  the  rolls 
in  the  case  of  Boehm  v.  Wood,  to  put  the  mortgagor  and  mort- 
gagee, when  in  possession,  in  the  same  plight.  The  rule  of  pre- 
sumption has  long  been  adopted  in  favor  of  the  mortgagee ;  so  that 
when  he  has  been  in  possession  twenty  years,  the  mortgagor  will 
not  be  let  in  to  redeem. 

I  see  no  objection  to  the  adoption  of  a  rule  by  this  court,  that  a 
lapse  of  twenty  years,  without  payment  or  demand  of  principal 
or  interest,  shall  raise  a  presumption  of  payment  in  the  case  of  a 
mortgage.  Our  statute  bars  the  recovery  of  the  debt  after  six- 
teen years;  and  after  twenty  years  the  right  of  entry  is  -gone, 
and  tlje  mortgage  is  no  longer  a  subsisting  title;  why  should  the 
mortgage  still  be  valid  in  a  court  of  equity,?  But  I  am  not  call- 
ed on  to  establish  such  a  principle,  or  to  say  that  the  English 
doctrine  is  strictly  applicable  here.  Admitting  it  to  be  so,  and 
this  case  to  be  within  it,  it  does  not  determine  the  rights  of  the 
parties.  It  raises  a  presumption  that  the  mortgage  is  satisfied; 
and  I  am  willing  to  admit  that  such  presumption  is  raised  in  fa- 
vor of  the  payment  of  this  mortgage,  by  the  lapse  of  twenty- 
three  years  without  payment  or  demand  of  interest.  It  is,  never- 
theless, but  a  presumption.  Standing  alone,  without  explana- 
tion, tit  would  prevail,  and  be  tantamount  to  absolute  proof,  as 
well  in  equity  as  at  law  ;  and  this,  not  because  of  any  actual 
belief  that  the  debt  has  been  paid,  but  because  it  is  right  that 
possession  should  be  quieted.  But  the  presumption  may  be  re- 
pelled by  a  variety  of  circumstances;  and  it  remains  to  be  seen 
whether  there  are  any  of  sufficient  weight  to  destroy  it.  Upon 


694  CASES  IN  CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co. 

this  part  of  the  case  I  entertain  no  doubt.  The  very  situation  of 
the  parties  is  of  itself  sufficient  to  my  mind.  The  mortgagor 
was  a  near  relative ;  he  had  married  the  daughter  of  the  mort- 
gagee, and  had  issue.  According  to  Ld.  Erskine,  in  Hillary  v. 
Waller,  12  Ves.  265,  that  alone  was  sufficient.  The  mortgagor 
died  many  years  ago,  leaving  his  wife  and  children  in  possession. 
They  were  not  in  a  situation  to  pay  either  principal  or  interest. 
To  have  exacted  the  payment,  might  have  brought  distress  upon 
those  who  depended  on  this  property  for  a  support,  and  would  have 
been  harsh,  to  -say  the  least  of  it.  To  suffer  the  mortgage  to 
remain  without  compelling  payment,  was  a  reasonable  indul- 
gence, and  ought  not  to  be  set  up  now  for  the  purpose  of  defeat- 
ing the  claim.  One  ground  for  a  presumption  of  payment,  grow- 
ing out  of  a  lapse  of  time,  is  that  a  man  is  always  ready  to  enjoy 
what  is  his  own.  Whatever  will  repel  this,  will  take  away  the 
presumption  of  payment ;  and  for  this  purpose  it  has  been  held 
sufficient  that  the  party  was  insolvent,  or  a  near  relation. 

Without  adverting  to  other  circumstances  that  might  be  ad- 
duced, I  feel  satisfied  to  declare  the  mortgage  a  subsisting  lien 
on  the  property,  and  that  the  complainants  are  entitled  to  re- 
cover. • 

Let  an  account  be  taken  of  the  sum  due. 

CITED  in  Button  v.  Allen,  1  Hal.  Ch.  104;  Evans  v.  Huffman,  1  Hal.  Ch.  360; 
Conover  v.  Wright,  2  Hal.  Ch.  615;  Hayes  v.  Whitall,  2  Seas.  242;  Marsh's 
EXT  v.  Oliver's  Ex.,  1  McCar.  262 ;  Cowart  v.  Perrine,  3  C.  E.  Gr.  457 ; 
Burned  v.  Earned,  6  C.  E.  Gr.  246. 


JASPER  S.  SCUDDER  v.  THE  TRENTON  DELAWARE  FALLS  COM- 
PANY, WILLIAM  PERSfi,  AND  ELAM  T.  BALDWIN. 


Tire  power  of  a  court  of  equity  to  interpose  by  injunction  in  cases  of  waste,  private 
nuisance,  and  great  and  irreparable  injury  to  the  inheritance,  is  well  estab- 
lished. It  does  not  rest  on  modern  or  questionable  decisions,  but  is  ancient, 
uniform,  and  not  now  to  be  shaken. 

The  late  cases  have  so  construed  this  power  as  to  embrace  trespasses  of  a  con- 
tinuous or  extraordinary  character ;  and  have  gone  upon  the  ground,  that 
the  property  to  be  protected  was  of  peculiar  value,  for  the  injury  or  destruc- 
tion of  which  a  recompense  in  damages  could  not  be  made. 

The  complainant  is  in  possession  of  a  farm  on  the  river  Delaware.  The  house 
stands  on  the  bank,  not  far  from  the  commencement  of  the  declivity.  The 
bank,  along  which  the  water  sweeps  when  the  river  is  full,  is  a  green  bank  ; 


JULY  TERM,  1832.  605 

Scudder  v.  Trenton  Delaware  Falls  Co. 

the  upper  part  of  which,  through  the  whole  extent  of  the  farm,  is  covered 
with  a  grove  of  trees.  The  lower  part,  from  the  water's  edge  to  the  height 
of  ordinary  freshets,  and  to  the  roots  of  the  trees,  has  been  secured  by  cov- 
ering it  with  stones;  by  means  of  which,  in  connexion  with  the  trees,  the 
bank  is  at  present  effectually  secured.  In  constructing  the  raceway  of  the 
Trenton  Delaware  Falls  company,  to  create  their  water  power,  as  located, 
this  green  bank,  part  of  which  is  immediately  in  front  of  the  dwelling- 
house,  must  be  cut  down,  and  the  trees  destroyed  ;  which  will  greatly  ex- 
pose the  property  to  the  encroachments  of  the  river.  This  will  be  a  lasting 
injury  to  the  inheritance  :  it  forms  a  clear  case  of  waste,  over  all  which  cases 
the  court  has  an  undoubted  jurisdiction. 

Considering  this  in  the  light  of  a  trespass,  it  is  not  an  ordinary  case,  where  the 
damage  is  temporary,  or  of  such  a  character  as  to  admit  of  full  compensation. 
The  company  seek  to  take  entire  possession  of  this  part  of  the  property  ; 
appropriate  it  permanently  to  their  own  use,  and  place  it  beyond  the  power 
or  control  of  the  complainant.  This  would  be  a  complete  severance  of  this 
part  of  the  estate  from  the  residue,  and  destruction  of  it  in  the  character  in 
which  he  now  enjoys  it :  this  court  has  authority  to  interpose  its  arm  to  pre- 
vent such  an  act. 

If  the  complainant  has  lain  by  and  slept  over  his  rights;  has  seen  the  defen- 
dants making  contracts,  and  expending  large  sums  of  money,  in  the  prose- 
cution of  their  works,  and  taken  no  steps  to  restrain  them  ;  it  is  fatal  to  the 
application.  It  is  a  law  of  the  court,  and  dictate  of  sound  reason,  that  when 
a  party  desires  extraordinary  aid,  he  must  be  prompt  in  his  application. 

But  when  the  complainant  did  not  consent  to  give  his  land,  made  no  agree- 
ment with  the  company,  and  commissioners  were  appointed,  who  made  an 
appraisement,  and  the  amount  was  tendered  him,  which  he  refused  to 
accept,  and  gave  notice  to  the  company  that  unless  they  paid  him  what  he 
was  willing  to  receive  for  the  property,  he  wouhl  contest  the  validity  of  their 
proceedings  ;  it  was  not  necessary  for  him  to  do  more  until  his  rights  were 
invaded. 

In  all  cases  where  a  corporation  exceed  the  limits  of  the  power  given  them,  or 
abuse  or  misapply  it,  the  court  will  interfere  :  but  it  will  not  give  its  aid, 
where  the  powers  granted  have  been  exercised  in  good  faith  ;  or  where  they 
are  discretionary,  or  where  the  right  is  doubtful.  • 

Private  property  cannot  be  taken  for  private  use.  The  legislature  have  no  right 
to  take  the  property  of  one  man  and  give  it  to  another,  even  upon  just  com- 
pensation made. 

The  right  of  the  state  to  take  private  property  for  public  use,  making  just  compen- 
sation, is  a  right  appertaining  to  sovereignty,  which  the  state  may  freely  ex- 
ercise on  all  proper  occasions,  and  which  a  jury  has  no  power  to  control. 

This  right  (of  taking  private  property  for  public  use)  was  originally  founded  on 
state  necessity.  In  process  of  time  the  right  has  been  more  liberally  con- 
strued ;  the  term  public  use  has  been  substituted  ;  and  what  shall  be  consid- 
ered as  public  use,  is,  under  the  decisions  of  our  courts,  an  unsettled  question. 
What  shall  be  a  public  use  or  benefit,  may  depend,  somewhat,  on  the  situation 
and  wants  of  the  community  for  the  time  being. 


696  CASES  IN  CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co. 

This  right  is  not  limited  to  the  actual  use  and  occupation  of  the  property  by  the 
state  ;  for  private  property  is  taken,  in  many  instances,  where  the  rftate  in  its 
sovereign  capacity  does  not  and  cannot  occupy  it.  It  is  not  limited  to  public 
political  corporations  ;  for  the  right  of  private  corporations,  to  take  private 
property,  for  a  variety  of  purposes,  such  as  canals  and  railroads,  is  not  dis- 
puted at  this  day. 

The  legislature,  in  this  state,  is  not  omnipotent,  as  the  British  parliament.  The 
provisions  of  the  constitution  are  paramount  to  the  power  of  the  legislature,!; 
and  whenever  the  legislature,  in  the  exercise  of  its  authority,  transcends  the 
limits  clearly  prescribed  to  it  by  the  constitution,  its  acts  are  void ;  and  it  is 
the  duty  of  the  judiciary  to  declare  them  so. 

The  constitution  provides  "  that  the  common  law  of  England,  as  well  as  so  much 
of  the  statute  law  as  have  heretofore  been  practiced  in  this  state,  shall  remain 
in  force  until  altered  by  the  legislature,  &c.,  and  that  the  inestimable  right 
of  trial  by  jury,  shall  remain  confirmed  as  a  part  of  the  law  of  this  state  with- 
out repeal  for  ever."  These  words  of  the  constitution  are  fully  satisfied,  by 
preserving  the  trial  by  jury  in  all  criminal  cases,  and  all  trials  of  right  iu 
suits  at  common  law. 


,  This  bill  is  filed  to  procure  an  injunction,  restraining  the  de- 
fendants from  entering  upon  the  property  of  the  complainant, 
for  the  purpose  of  cutting  and  constructing  a  raceway  to  conduct 
water  from  the  river  Delaware  to  a  point  below  the  Trenton 
Falls ;  the  right  to  cut  and  construct  which  raceway  ia  claimed 
by  the  Trenton -Delaware  Falls  company  for  themselves,  and  for 
the  said  William  Perse  and  Elam  T.  Baldwin  as  their  agents,  in 
virtue  of  an  act  of  the  council  and  general  assembly  of  this  state, 
entitled,  "  An  act  to  incorporate  a  company  to  create  a  water-power 
at  the  city  of  Trenton  and  its  vicinity,  and  for  other  purposes," 
passed  the  16th  of  February,  1831. 

After  setting  forth  the  act,  or  such  parts  of  it  as  were  deemed 
material,  the  complainant  proceeds  to  state,  that  the  capital  stock 
was  subscribed,  and  thirteen  managers  appointed ;  that  these 
managers,  under  color  of  the  act,  have  caused  a  survey  and  re- 
port to  be  made  and  filed  of  the  location  of  the  wing-dam  and 
raceway,  according  to  which  the  route  passes  through  and  over 
the  farm  of  the  complainant,  near  to  his  dwelling-house,  and  so 
as  to  occasion  serious  and  lasting  injury  to  his  interests.  That 
the  said  company,  without  making  any  compensation  or  offer  of 
compensation  to  the  complainant,  caused  a  survey  and  map  to 
be  made,  of  so  much  of  the  said  land  as  was  intended  to  be  ap- 
propriated by  them,  and  exhibited  them  to  the  chief  justice  of 


JULY  TERM,  1832.  697 

Scudder  v.  Trenton  Delaware  Falls  Co. 

the  state,  who  thereupon  appointed  three  appraisers,  who  in  Sep- 
tember, 1831,  proceeded  to  make  an  appraisement,  of  the  value 
of  the  complainant's  lands  to  be  appropriated  as  aforesaid,  and  of 
the  damages  to  be  sustained  by  him  in  consequence  thereof. 
That  the  appraisers  proceeded  to  make  the  appraisement,  and 
after  having  made  it,  the  company  tendered  to  the  complainant 
the  sum  of  four  hundred  and  fifty  dollars,  as  the  amount  of  his 
damages,  which  he  declined  to  receive;  the  same  being,  as  he 
alleges,  utterly  inadequate,  as  a  compensation  for  the  value  of 
his  land  and  damages.  That  afterwards  the  said  company,  by 
themselves  and  their  agents,  entered  upon  the  land  of  the  com- 
plainant, and  proceeded  to  fell  and  destroy  the  timber  and  trees 
there  growing.  That  upon  being  warned  against  any  further 
proceeding,  they  desisted  from  committing  further  waste,  but 
threaten  that  they  will  at  their  leisure  enter  again  on  the  pro- 
perty, and  proceed  to  excavate  and  form  the  raceway  thereon; 
which  raceway,  if  formed,  would  be  a  great  and  irreparable  in- 
jury to  the  inheritance,  by  destroying  the  timber  and  trees  grow- 
ing upon  the  bank  of  the  river  Delaware,  which  form  a  natural 
and  sure  protection  for  said  bank  against  the  effects  of  ice  and 
freshets;  by  intercepting  his  ready  communication  with  the  river; 
by  depriving  him  of  a  valuable  portion  of  his  farm,  and  by  de- 
stroying his  fishery. 

The  complainant  then  charges,  that  the*"  said  act,  so  far  forth 
as  any  authority  is  given  thereby  to  the  defendants  to  enter  upon 
and  take  the  land  and  property  of  the  complainant  for  the  purposes 
aforesaid,  without  making  and  tendering  an  adequate  compensation, 
and  without  the  consent  of  the  complainant,  is  unconstitutional 
and  void  ;  the  same  not  being  taken  to  answer  any  state  necessity, 
nor  for  the  benefit  of  the  community  at  large,  nor  for  any  public 
use  whatsoever,  but  solely  for  the  private  gain  and  emolument  of 
the  said  company. 

The  complainant  then  further  charges,  that  the  said  act,  so  far 
forth  as  it  assumes  to  vest  the  right,  property  and  interest  of 
the  complainant  in  and  to  his  lands,  in  the  company,  without  a 
just  compensation  therefor,  and  without  an  opportunity  of  having 
the  said  compensation  ascertained  by  a  jury,  is  unconstitutional 
and  void :  and  prays  that  the  said  act  may  be  so  declared  by  the 


698  CASES  IN  CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co. 

court,  and  that  the  defendants  may  be  restrained  from   again  en- 
tering upon  the  premises  and  committing  waste  thereon. 

To  this  bill  an  answer  was  filed  by  the  company  under  their 
corporate  seal,  and  by  William  Perse  and  Elam  T.  Baldwin,  the 
other  two  defendants,  under  their  oath  ;  which,  with  some  affida- 
vits, were  read  and  used  at  the  hearing.  They  do  not  so  materi- 
ally vary  the  case  made  by  the  bill,  as  to  render  it  necessary  to 
spread  out  their  contents.  They  are  adverted  to  in  the  discussion 
of  the  case,  and  receive  due  attention,  so  far  as  they  bear  upon  the 
points  coming  under  consideration. 

W.  Halsted,  for  the  complainant.  The  application  is  for  an 
injunction  against  the  Trenton  Delaware  Falls  company,  to  pre- 
vent their  injuring  the  complainant's  property,  and  to  test  the 
constitutionality  of  their  charter.  We  allege  that  the  act  is  for 
private  purposes,  and  designed  to  take  private  property  for  private 
use;  and  that,  upon  an  assessment  by  commissioners,  appointed 
by  a  justice  of  the  supreme  court,  without  the  intervention  of  a 


This  company  was  incorporated  to  create  a  water  power,  for 
manufacturing  purposes.  It  is  strictly  a  private  corporation,  and 
entitled  to  none  of  the  privileges  of  a  public  corporation  :  Angell 
and  Ames  on  Corp.  22  ;  4  Wheat.  R.  668  ;  9  Crunch's  R.  52  ; 
2  Kent's  C.  222. 

We  admit  that  private  property  may  be  taken  for  public  use, 
making  just  compensation:  but  in  this  case,  the  property  is  not 
taken  for  public  use  or  state  necessity,  but  for  private  purposes. 
Highways  are  necessary  for  public  use;  turnpikes,  railroads  and 
canals  are  highways,  upon  which  all  persons  may  travel,  paying 
the  prescribed  tolls.  They  are  for  public  use  :  2  Bay's  R.  46,  54. 
But  this  water  power  is  for  the  benefit  of  the  stockholders  alone. 
No  one  has  a  right  to  use  it  without  the  consent  of  the  company. 
They  may  occupy  it  all  themselves,  or  sell  or  let  out  the  privilege 
of  using  it,  at  what  price  they  please.  By  the  act,  the  state  have  a 
right  to  subscribe,  and  become  a  party,  or  stockholder  in  the  com- 
pany ;  but  that  does  not  alter  the  case  :  9  Wheat.  R.  907  ;  2 
Ana.  and  Ames,  22,  8.  It  would  still  be  a  private  corporation, 
and  the  property  taken  would  be  taken  for  private  use.  If  the 


JULY  TERM,  1832.  699 

Scudder  v.  Trenton  Delaware  Falls  Co. 

object  of  this  incorporation  is  for  public  use,  what  neighborhood 
improvement  is  not  for  public  use?  The  water  power  will  be  pri- 
vate property;  does  it  depend  on  the  extent  of  it,  whether  it  will 
be  for  public  or  private  use  ?  It  is  said  it  will  be  sufficient  for  se- 
venty mills  :  how  many  mills  will  make  it  for  public  use?  If 
seventy,  why  not  a  less  number;  why  not  one?  The  erection  of 
one  mill,  in  certain  situations,  is  a  great  public  benefit;  particu- 
larly in  the  first  settlement  of  a  country.  But  can  the  legislature 
authorize  a  company  to  take  private  property  to  erect  a  mill?  A 
blacksmith's  shop  is,  in  one  sense,  for  public  use.  It  is  necessary  to 
agriculture  and  other  branches  of  industry.  Inns  and  taverns  are 
for  public  use  expressly,  and  they  are  regulated  by  general  laws ; 
yet  the  property  of  A.  cannot  be  taken  without  his  consent,  and 
given  to  B.  to  erect  a  blacksmith's  shop  or  tavern  ?  If  not,  why 
can  it  be  taken  to  erect  a  mill,  or  any  number  of  mills?  The 
legislature  might  have  authorized  a  company  to  purchase  and  hold 
property  for  manufacturing  purposes,  as  was  done  in  the  charter  of 
the  society  for  establishing  useful  manufactures  at  Paters«n :  but 
in  authorizing  them  to  take  private  property,  without  the  consent 
of  the  owner,  for  such  purposes,  they  exceeded  their  constitutional 
powers  and  the  act  is  void. 

It  is  contrary  to  the  spirit,  if  not  the  letter,  of  the  constitution 
of  the  United  States ;  which  provides,  that  private  property  shall 
not  be  taken  for  public  use,  without  just  .compensation  :  a  fortiori, 
it  cannot  be  taken  for  private  use  at  all.  It  may  be  considered 
contrary  to  the  constitution  in  another  respect:  it  impairs  the  obli- 
gation of  contracts.  A.  purchases  land,  with  covenant  of  warranty. 
It  is  taken,  without  his  consent,  and  is  given  to  B.  He  might 
have  remedy  on  his  covenant,  but  is  cut  off  by  the  act  of  the  legis- 
lature: 6  Craneh's  R.  177;  9  Cranch,  43,  292;  8  Wheat.  #.464, 
481  ;  4  Wheat.  — ,  (Dartmouth  College}-,  1  John.  R.  502 ;  2  Gallis. 
R.  139,  144. 

But  if  the  object  of  this  charter  can  be  considered  for  public  use, 
in  such  sense  as  to  authorize  the  taking  of  private  property  without 
the  consent  of  the  owner,  it  must  be  done  on  just  compensation 
made;  and  the  amount  of  that  compensation  can  only  be  ascer- 
tained by  the  intervention  of  a  jury;  for  which  the  act  makes  no 
provision.  Our  state  constitution  adopts  the  common  law  of  Eng- 


700  CASES  IN  CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co. 

land,  and  provides,  "  that  the  right  of  trial  by  jury  shall  remain 
confirmed  as  a  part  of  the  law  of  the  land,  without  repeal,  for 
ever."  By  the  common  law,  the  compensation  to  be  made  for 
pri.vate  property  taken  for  public  use,  could  only  be  ascertained  by 
a  jury,  on  a  writ  of  ad  quod  damnurn. 

In  England,  where  the  parliament  is  omnipotent,  they  have 
ever  respected  this  great  principle  of  the  common  law ;  and  nev- 
er attempted  to  take  private  property  for  public  use,  without  the 
intervention  of  a  jury:  2  Bay's  R.  55,  refers  to  stat.  29  Geo.  II. 
(1755,)  which  requires  a  jury  to  assess  damages  for  land  taken 
for  a  public  bridge.  The  statutes  5  Geo.  III.  c.  50,  s.  14;  7  Geo. 
III.  c.  42,  s.  12;  10  Geo.  III.  c.  25,  and  13  Geo.  III.  c.  78,  a. 
16,  make  the  same  provision  in  case  of  taking  land  for  public 
highways;  and  7  Geo.  III.  c.  51,  in  case  of  a  canal.  The  British 
parliament  have  never  undertaken  to  do  what  our  legislature  have 
done  in  this  instance;  they  have  always  provided  for  the  interven- 
tion of  a  jury.  I  refer  to  8  John.  R.  433;  2  Peters'  R.  645,  as  to 
the  mode  of  proceeding  in  England,  in  taking  private  property; 
and  2  Peters'  R.  656-7-8,  as  to  the  constitutional  powers  of  the 
legislature. 

In  England,  private  property  is  sacred  :  it  cannot  be  taken  but 
for  public  use,  and  on  compensation  made ;  and  that  compensa- 
tion must  be  ascertained  by  a  jury:  1  Blac.  C.  138-9,  n.  15; 
Fitzherb.  N.  B.  509,  516.  The  same  principle  has  been  recog- 
nized in  this  court,  by  the  late  chancellor,  in  the  case  of  the  So- 
ciety at  Paierson  v.  The  Morris  Canal,  and  has  been  sanctioned  by 
judicial  decisions  of  high  authority  in  this  country.  In  2  Bay's  R. 
38,  it  was  admitted  by  the  counsel  on  both  sides.  In  Vanhorne's 
lessee  v.  Dorrance,  2  Dal.  R.  310,  Paterson,  J.,  said,  there  were 
only  three  ways  in  which  the  state  could  take  lands :  1.  By  agree- 
ment of  parties;  2.  On  assessment  by  commissioners  mutually 
chosen  ;  and,  3,  by  jury. 

To  take  private  property  for  the  purposes,  and  in  the  manner, 
prescribed  by  this  act,  is  contrary  to  the  principles  of  our  state  in- 
stitutions. See  the  constitutions  of  Massachusetts,  New-Hamp- 
shire, Vermont,  Pennsylvania,  Delaware,  Maryland,  and 
Kentucky.  Under  monarchical  governments,  where  all  power 
resides  in  the  crown  or  parliament,  if  the  people  claim  a  right, 


JULY  TERM,  1832.  701 

Sciidder  v.  Trenton  Delaware  Falls  Co. 

they  must  show  it.  But  under  our  government,  where  the  power 
resides  in  the  people,  it  is  the  reverse.  The  constitution  has  set 
bounds  to  legislative  authority.  All  power  not  delegated  to  them, 
is  reserved  to  the  people;  and  if  the  government  claims  a  right, 
they  must  show  it:  Delolme  Const.  Eng.  316  ;  6  Dane's  Ab.  431  ; 
Federalist,  No.  49,  84,  273,  464. 

It  is  contrary  to  natural  justice :  1  Bay's  R.  98 ;  Opinion  of 
Marshal,  J.,  6  Cranch's  R.  135-6. 

It  is  contrary  to  the  law  of  nature  and  nations ;  the  civil  law, 
and,  I  may  add,  the  divine  law  :  Dig.  Panel.  Justin.  170  ;  Grotius, 

1  vol.  120,  B.  1,  c.  3,  art.  6,  s.  4;   Ibid.  467,  B.  2,  c.  14,  a.  7,  8 ; 

2  vol.  947,  B.  3,  c.  20,  a.  3,  s.  2,  3,  and  note  to  B.  1,  c.  1,  s.  6— 
all  go  on  what  Grotius  calls  the  eminent  domain,  and  the  owner  is 
to  be  indemnified  out  of  the  public  funds.     Puffendorf  calls  this 
eminent  domain,  the  sovereign  transcendent  propriety,  and  says  this 
propriety  never  takes  place,  but  in  extreme  necessity  and  emergen- 
cies.    In  the  divine  law  there  is  one  case,  1  King's,  c.  21 ;  the 
vineyard  of  Naboth.     There  private  property  could  not  be  taken 
for  private  use  by  a  sovereign  prince.     There  is  no  instance  of  it 
under  Turkish  despotism :    2  Bay's  R.  60:    The  mufti  told  the 
sultan  Mustapha,  that  the  laws  of  the  prophet  forbade  his  taking 
private  property  ;  and  shall  it  be  done  in  this  Christian  country, 
and  that  without  the  intervention  of  a  jury  ? 

The  whole  history  of  our  legislation  is^based  on  this  principle, 
that  a  jury  is  necessary  :  Learn,  and  Spi.  428  :  it  must  be  by  judg- 
ment of  peers,  or  according  to  the  laws  of  England.  This  has 
been  the  uniform  course  in  New-Jersey,  from  the  adoption  of  the 
constitution  until  the  Morris  Canal  company  obtained  their  char- 
ter: that  was  the  first  innovation.  The  act  incorporating  the 
society  at  Paterson,  passed  in  1791,  provided  for  a  jury.  The 
same  provision  is  contained  in  the  turnpike  and  railroad  laws,  from 
1801,  when  the  first-turnpike  act  passed,  to  1831,  when  the  Pater- 
soh  and  Hudson  river  railroad,  and  the  Elizabeth-Town  and  Som- 
erville  railroad  acts  passed. 

The  constitution  contains  no  express  provision  for  this  particu- 
lar case.  The  provision  is  general.  It  adopts  the  common  law 
of  England,  of  whi«h  the  principles  we  contend  for  are  a  part : 


702  CASES  IN  CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co. 

and  guarantees  the  right  of  trial  by  jury,  which  it  calls  inestima- 
ble. If  it  is  so  between  parties  standing  on  equal  grounds,  it  is 
much  more  so  where  the  weight  and  influence  of  the  state,  a  cor- 
poration, or  an  interested  community,  is  thrown  into  the  scale, 
against  a  solitary  individual. 

G.  D.  Wall,  for  the  defendants.  The  bill  in  this  case  is  of  ex- 
traordinary character.  It  is  not  to  restrain  the  company,  but  to  call 
in  question  the  constitutionality  of  their  charter.  It  does  not  allege 
that  the  defendants  have  exceeded  their  authority,  or  proceeded 
without  the  bounds  of  their  charter :  but  insists,  that  they  have  no 
constitutional  right  to  proceed  at  all.  If  the  law  is  constitutional, 
the  complainant  has  no  ground  to  stand  on  ;  and  if  the  object  be 
to  test  the  constitutionality  of  the  charter,  the  complainant  should 
have  resorted  to  another  tribunal.  But  he  avoids  the  legal  tribunal, 
in  which  it  should  properly  be  tried,  and  seeks  to  call  it  in  question 
in  this  court.  A  court  of  equity  is  ancillary  to  a  court  of  law,  and 
does  not  take  original  jurisdiction  of  a  question  of  this  kind  :  19  Ves.  . 
449  ;  1  Coop.  305.  There  are  cases  in  which  a  court  of  equity  may 
try  the  constitutional  question  incidentally;  but  not  one  in  which 
it  is  made  the  great  preliminary  question.  This  court  has  n«  power 
to  try  the  constitutionality  of  the  act,  or  question  the  power  of  the 
commissioners,  per  directum:  4  Wash.  R.  608. 

To  entitle  him  to  an  injunction,  the  complainant  should  not 
only  present  a  proper  case,  but  be  prompt  in  his  application.  He 
has  lain  by,  and  is  now  too  late.  The  company  made  the  sur- 
vey and  map,  gave  notice  and  applied  for  the  appointment  of 
commissioners.  They  went  upon  the  ground,  made  the  assess- 
ment, and  the  amount  was  tendered  him.  He  did  not  appear 
before  the  chief  justice,  or  make  any  objection  to  the  appoint- 
ment of  the  commissioners.  He  made  no  objection  to  their  going 
upon  the  ground,  but  accompanied  them  there,  and  explained  to 
them  the  nature  and  extent  of  the  injury  he  would  sustain.  He 
might  have  brought  up  the  question  by  Certiorari,  trespass,  or 
ejectment,  but  he  made  no  application  to  the  court  for  aid  in  any 
way.  He  has  remained  a  passive  spectator  of  the  operations  of 
the  company,  until  they  have  expended  a  large  sum  of  money, 


JULY  TERM,  1832.  703 


Scudder  v.  Trenton  Delaware  Falls  Co. 


and  advanced  with  their  works  too  far  to  recede ;  and  now  comes 
into  court  for  an  injunction  to  arrest  their  farther  progress.  \Ve 
insist  he  is  too  late. 

The  bill  is  founded  upon  the  principle,  that  irreparable  injury 
was  about  to  be  sustained.  The  object  to  be  protected  is  the  farm  ; 
the  injury  to  be  sustained  is  the  destruction  of  the  river  bank, 
and  trees  growing  on  it,  which  form  a  protection  against  freshets 
and  ice;  and  the  destruction  of  a  fishery.  The  facts  are  con-- 
troverted,  or  denied,  by  the  answer,  which  is  competent:  4  Wash. 
R.  605,  Haight  v.  The  Morris  Aqueduct  Co.  But  we  have 
affidavits,  which  disclose  the  facts.  The  complainant  loses  about 
one  acre  of  land,  of  little  value.  It  is  a  bed  of  gravel,  on  the 
shore,  below  the  present  bank  of  the  river,  incapable  of  being 
used  for  agricultural  purposes.  It  is  unenclosed,  and  separated 
from  the  farm  by  a  public  road  on  the  top  of  the  bank,  which 
passes  between  that  and  the  other  lauds  of  the  complainant.  On 
the  bank  stand  a  few  forest  trees,  of  no  use  for  ornament  or 
shade;  but  which,  it  is  said,  form  a  protection  to  the  bank. 
This  bank  will  be  shaved  down,  and  another  formed,  between 
the  raceway  and  the  river,  which  will  afford  a  protection ;  and 
the  one  bank  will  be  substituted  for  the  other.  But  the  com- 
plainant says  he  has  a  right  of  fishery.  He  owns  the  land  front- 
ing on  the  river  only  part  of  the  way.  They  sot  out  on  his  land, 
and  draw  in  on  the  land  of  another  person.  He  really  owns  no 
fishery:  it  has  not  been  entered  according  to  law.  The  court 
cannot  protect  a  fishery  that  has  no  legal  existence.  If  it  had, 
the  land  line  can  be  carried  as  well  on  the  bank  of  the  raceway 
as  on  the  river  bank ;  and  the  fishery  will  not  be  injured.  There 
is  no  injury  to  be  apprehended  from  the  encroachments  of  the 
river.  The  bank  to  be  erected  will  be  a  better  protection  to  the 
farm  than  the  river  bank.  The  only  cause  of  complaint  is,  that 
a  few  trees  may  be  cut  down,  which  are  now  liable  to  be  cut  by  the 
overseer  of  the  highway. 

This  is  not  a  case  of  irreparable  injury.  The  complainant 
must  show  that  the  injury  is  irreparable,  and  that  no  adequate 
relief  can  be  had  at  law,  to  give  this  court  jurisdiction:  Opin. 
of  this  court  in  the  case  of  The  Columbia  Water  Co. ;  7  John. 
C.  R.  307.  Here  the  injury,  if  any,  is  trifling,  and  may  be 


704  CASES  IN  CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co. 

compensated  in  damages :  there  is  no  ground  for  injunction. 
Beside,  the  complainant  sets  up  his  title  to  the  land  :  the  defen- 
dants say  they  have  acquired  title,  by  proceedings  under  the  act. 
The  title  is  in  dispute.  This  court  will  not  interfere  in  such  a 
case,  an'd  go  beyond  the  precedents  and  principles  of  the  court; 
but  will  leave  the  parties  to  their  legal  rights. 

As  to  the  constitutional  objection,  that  the  taking  of  this  pro- 
perty is  for  private  purposes,  and  not  for  public  use;  that  it  does 
not  appertain  to  that  eminent  domain  which  i,s  the  right  of  sove- 
reignty :  we  say,  that  under  our  constitution  that  right  is  vested 
in  the  people,  or  their  representatives  in  the  legislature.  What 
is  the  limit  to  that  power,  it  is  not  easy  to  say,  when  it  is  not 
ascertained  by  the  social  compact.  To  the  legislature  also  be- 
longs the  power  of  determining  when  it  is  proper  to  exercise  this 
right;  or  what  is  a  public  use,  for  which  private  property  may  be 
taken.  The  one  is  incident  to  the  other  ;  and  when  the  legislature 
have  decided,  their  judgment  ought  not  lightly  to  be  called  in 
question. 

The  company  are  authorized  to  create  a  water-power,  for 
manufacturing  purposes.  The  great  object  of  the  law,  is  to  ad- 
vance the  cause  of  manufactures.  And  have  not  the  legislature 
a  right  to  do  this?  In  what  other  way  can  they  turn  to  public 
account  and  benefit  the  waters  of  the  state,  and  privileges  apper- 
taining to  them,  but  by  acts  of  incorporation  ?  Manufactures  in- 
crease agriculture  and  commerce;  and  are  not  these  public  con- 
cerns ?  Highways  are  under  the  power  of  the  legislature  on  the 
same  principle.  It  is  for  the  wisdom  of  the  people,  in  their  ag- 
gregate capacity,  to  judge  of  the  public  necessity,  from  the  ob- 
ject and  expediency  of  the  measure ;  and  the  opinion  of  the  le- 
gislature must  govern  :  Opin.  Ch.  Walworth,  Beekman  v.  Sarato- 
ga and  Schenectady  Railroad  Co.,  cites  2  Kent's  C.  256.  See  also 
2  Peters  .R.  251. 

Again,  the  raceway  will  be  a  navigable  canal.  The  water  is 
taken  from  the  Delaware,  and  carried  round  the  principal  ob- 
structions to  the  navigation  of  the  river;  Scudder's,  White's,  and 
the  Trenton  falls.  It  is  not  necessary  that  it  should  be  declared 
to  be  a  public  highway  in  the  act;  it  must  necessarily  be  so. 
The  water  is  taken  from  the  river  into  the  canal,  and  passes  out  j 


JULY  TERM,  1832.  705 

•  Scudder  v.  Trenton  Delaware  Falls  Co. 

it  is  public  property,  and  is  impressed  with  the  right  of  servitude 
to. the  public:  Harg.  L.  Tracts,  9;  Hale's  de  Jure  Marls. 

The  charter  does  not  conflict  with  the  constitution  of  the 
United  States :  compensation  is  to  be  made,  but  this  need  not 
be  assessed  by  a  jury.  The  legislature  may  adopt  any  other 
mode.  The  assessment  by  a  jury,  on  an  ad  quod  damnum, 
was  trhe  general  mode  in  England,  but  not  universal :  1  Jacob's 
L.  Diet.  49.  There  are  many  cases  under  the  enclosure  acts, 
in  which  that  mode  was  not  resorted  to.  Other  modes  were 
adopted  in  this  state,  under  the  proprietary  government :  Learn, 
and  Spi.  440;  also  under  the  royal  government:  Allison's  N. 
J.  L.  273,  see.  3,  provides  for  the  assessment  of  damages,  for 
making  roads,  by  commissioners.  It  is  true,  the  first  turnpike 
acts  provided  for  the  assessment  of  damages  by  jury;  but  that 
was  unnecessary.  Damages  may  as  well  be  assessed  by  commis- 
sioners :  it  is  done  in  other  states,  where  the  common  law  is 
adopted. 

This  does  not  interfere  with  the  trial  by  jury.  The  true 
construction  of  the  constitution  of  New-Jersey,  is,  that  the  trial 
by  jury  is  to  remain  in  criminal  cases,  and  the  trial  of  issues  in 
fact  between  party  and  party :  Opin.  of  Baldwin,  J.,  Buona- 
parte v.  The  Caniden  and  Amboy  Railroad  Co.  This  con- 
struction is  reasonable  ;  it  satisfies  the  wo^ls  of  the  constitution,,. 
and  is  conformable  to  the  practice  heretofore  existing  in  this 
state.  We  insist  that  there  is  nothing  in  these  constitutional  objec- 
tions. 

8.  L.  Southard,  on  the  same  side.  After  the  argument  that 
has  been  made  in  this  case,  little  remains  to  be  said.  My  object, 
will  be,  to  satisfy  the  court,  that  this  case  is  within  the  principles 
laid  down  by  chancellor  Wai  worth  and  judge  Baldwin,  the  opin- 
ions cited  ;  and  to  show,  that  the  facts  in  this  case  present  no 
equitable  ground  to  give  this  court  jurisdiction. 

Who  are  'the  parties,  and  what  are  their  rights  ?  The  com- 
plainant owns  a  farm  on  the  Delaware  :  his  right  of  soil  runs 
under  the  water,  and  he  claims  a  fishery.  The  defendants  are 
a  corporation,  intended  to  effect  a  great  public  object;,  calculated 
to  promote  the  agriculture  and  commerce  of  the  country,  and  to- 

2  y 


706  CASES  IN  CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co.    • 

operate  upon  the  navigation  of  the  river.  It  is  not  extravagant  to 
say,  that  it  is  calculated  to  have  a  larger  effect  upon  the  manufac- 
turing interests  of  the  country,  than  any  other  institution  in  this 
or  any  other  of  the  states.  There  is  not  another  location  which, 
from  the  natural  advantages  of  its  situation,  between  the  two  great 
emporiums,  and  the  extent  of  its  water-power,  is  calculated  to 
produce  such  effects.  It  is  subject,  by  the  terms  of  the  charter,  to 
be  taken  for  the  benefit  of  the  state,  and  subject  to  a  right  of  sub- 
scription on  the  part  of  the  state.  It  seems  to  be  insisted,  how- 
ever, that  because  the  legislature  did  not  declare  it  was  intended 
for  a  public  benefit,  it  is 'not  so.  This  does  not  follow.  If  there 
be  a  plain  object  of  public  utility,  then  it  is  necessary,  and  bene- 
ficial to  the  state.  Every  provision  of  the*  act  shows  that  the  legis- 
lature had  the  public  good  in  view.  I  infer,  from  the  general 
character  of  the  act,  its  provisions,  and  the  effects  to  be  produced, 
that  this  is  an  act  for  the  public  benefit.  It  is  within  the  princi- 
ple laid  down  by  chancellor  Walworth. 

The  whole  object  of  the  bill,  is  to  show,  that  the  law  is  uncon- 
stitutional, and  on  that  ground  to  arrest  the  proceedings  of  the 
company.  The  complainant  ought  to  have  commenced  his  op- 
position when  his  land  was  first  touched.  He  then  made  no  op- 
position. The  survey  was  made,  the  surveyors  made  report, 
it  was  made  public,  and  yet  no  complaint  was  made.  They  ap- 
plied to  know  if  he  would  give  or  sell  the  land.  He  did  not  then 
say  the  law  was  unconstitutional,  but  said  he  must  have  one 
thousand  dollars;  and  this  for  about  one  acre  of  land,  on  the 
bank  of  the  river.  Commissioners  were  applied  for  :  he  made  no 
opposition  at  that  time.  When  they  went  upon  the  ground,  he 
appeared  before  them.  He  prepared  a  paper,  and  stated  in  wri- 
ting to  the  commissioners,  the  grounds  of  his  damages,  and  the 
amount  he  ought  to  nave  awarded  to  him.  Did  he  not,  in  equi- 
ty, assent  to  the  proceeding  ?  5  Wend.  R.  581-5  ;  4  Halst.  R. 
21,  22. 

He  laid  by  when  he  ought  not:  the  consequence  is  important 
to  the  defendants.  Unless  the  raceway  goes  on  his  land,  it  can 
go  nowhere.  He  stands  by,  and  sees  the  company  making  con- 
tracts to  the  amount  of  thirty  thousand  dollars,  and  expending 
the  money ;  and  after  the  work  has  progressed  to  a  great  extent, 


JULY  TERM,  1832.  707 

Scudder  v.  Trenton  Delaware  Falls  Co. 

he  comes  to  a  court  of  equity  for  aid.  I  think  I  should  not  be  out 
of  the  way  in  saying,  that  the  conduct  of  the  complainant  has  ad- 
mitted the  constitutionality  of  the  law  ;  and  that  he  cannot  be  per- 
mitted now  to  come  into  court  and  deny  it.  These  circumstances 
should  prevent  the  court  from  listening  to  the  application. 

The  company  are  acting  under  an  act  of  the  legislature :  there 
is  no  charge  that  they  have  gone  out  of  the  act.  The  granting 
of  injunctions  is  discretionary  ;  and  the  court  will  not  interfere 
in  such  a  case.  The  complainant  claims  title  to  the  land ;  the 
defendants  claim  a  right  to  take  it,  under  the  statute.  It  is  a 
question  of  title,  purely  a  legal  question,  which  belongs  to  courts 
of  common  law  jurisdiction.  The  complainant  has  ample  reme- 
dy at  law,  and  ought  not  to  come  into  a  court  of  equity.  The 
injury  is  not  irreparable.  The  term,  irreparable  mischief,  is  well 
understood  in  equity.  This  is  not  of  that  character.  If  the  bank 
is  injured,  that  can  be  repaired ;  and  the  injury,  if  any,  to  the 
fishery,  compensated  in  damages.  But  we  insist  that  neither  will 
be  injured.  The  bank  of  the  raceway  will  serve  for  the  fishery, 
and  protect  bank  of  the  river.  The  very  existence  of  the  com- 
pany depends  on  their  maintaining  the  bank  of  the  raceway. 
But  has  the  complainant  a  fishery  ?  It  consists  of  going  into  the 
water  on  his  land,  and  coming  out  upon  the  land  of  another.  It 
has  not  been  entered  according  to  law.  He  lias  no  fishery.  There 
must  be  a  distinct  substantive  property,  to  which  the  party  has 
lawful  right,  to  entitle  it  to  protection. 

But  it  is  said  the  law  is  unconstitutional,  on  two  grounds : — 
1.  That  it  takes  private  property,  for  private  purposes;  and,  2. 
That  it  tries  question?  of  fact,  without  jury.  As  to  this,  I  say,  1. 
That  the  constitutionality  of  a  law  is  not  for  equity,  but  for  com- 
mon law  cognizance :  2.  That  the  unconstitutionally  of  a  law,  of 
itself,  has  never  been  the  ground  of  an  injunction. 

I  do  not  mean  to  say,  that  the  court  cannot  decide  the  law  to 
be  unconstitutional ;  but  that  the  party  cannot  come  into  court 
on  that  ground  alone.  He  must  show  such  a  case,  as,  without 
the  law,  would  be  a  proper  case  for  injunction  :  then,  if  the  de- 
fendants set  up  the  law,  it  may  be  decided  unconstitutional.  But 
let  us  look  at  these  questions,  first,,  as  to  the  ground,  that  the 
property  of  one  man  cannot  be  taken  and  given  to  another.  I 


708  CASES  IN  CHANCERY. 

Scadder  v.  Trenton  Delaware  Falls  Co. 

do  not  mean  to  say  that  this  is  not  correct.  This  was  the  case 
in  Vanhorne's  lessee  v.  Dorrance,  in  2  Dal.  — .  There  the  land 
of  some  individual  was  to  be  taken  and  given  to  others  :  the  public 
interest  was  not  to  be  benefited.  But  the  learned  judge  who  de- 
cided that  case,  never  said  that  such  was  the  rule  where  public  in- 
terests were  concerned. 

The  rule  laid  down  by  judge  Story,  is,  that  all  but  political 
corporations  are  prjvate:  4  Wheat.  668.  Some  private  corpora- 
tions must,  then,  be  of  a  public  nature ;  otherwise  it  might  be 
said,  that  private  property  could  not  be  taken  for  a  private  corpo- 
ration :  but  this  is  not  so.  Private  property  may  be  taken  for  a 
private  corporation,  when  the  object  is  for  public  use.  When  a 
corporation  is  calculated,  or  intended,  to  produce  public  benefit, 
then  it  is  public  in  its  nature,  and  for  public  use.  This  is  the 
principle  on  which  chancellor  Wai  worth  puts  himself.  And  who 
is  to  judge  what  is  such  a  public  use,  as  will  justify  the  taking  of 
private  property  ?  Who  represents  the  sovereign  power  of  the 
state,  in  whom  this  right  of  eminent  domain  resides?  The  legisla- 
ture are  to  judge;  and  when  they  have  adjudged,  this  court,  nor 
no  other,  has  the  power  to  control  it. 

I  admit  that  just  compensation  must  be  made,  but  quo  modo. 
It  is  left  open  by  the  constitution.  The  legislature,  not  the  court, 
are  to  point  out  the  mode.  There  is  no  restriction.  We  are  told 
that  the  legislature  cannot  point  out  the  mode ;  there  must  be  a 
trial  fay  jury.  The  right  of  trial  by  jury  is  secured  by  the  con- 
stitution, and  I  do  not  mean  to  advocate  any  infringement  of  it ; 
but  deny  that  it  extends  to  this  case.  The  constitution  says,  the 
right  of  trial  by  jury  shall  be  confirmed,  for  ever.  How  did  it 
exist  when  the  constitution  was  adopted  ?  It  was  in  use  only  in 
criminal  matters,  and  where  parties  disputed  about  facts.  I  deny 
that  it  existed  as  a  mode  of  assessing  damages,  where  there  was 
no  dispute  about  facts.  In  certain  proceedings  in  the  orphan's 
court,  and  in  this  court,  in  cases  that  did  not  exist  previous  to  the 
adoption  of  the  constitution,  there  is  no  trial  by  jury.  But  we 
are  told,  that  the  common  law  of  England,  at  the  time,  required 
an  assessment  by  jury,  on  a  writ  of  ad  quod  damnum.  But 
there  were  various  cases  in  which  this  mode  was  not  resorted  to 
in  England.  It  is  amusing  to  trace  the  history  of  the  writ  of 


JULY  TERM,  1S32.  709 

Scndcler  v.  Trenton  Delaware  Falls  Co. 

ad  quod  datuuum  in  this  country.  Some  states  use  it  altogether; 
some  have  never  heard  of  it:  2  Virginia  Rev.  L.  225,  233,  238. 
Had  this  writ  been  adopted  and  in  use  in  this  state  at  the  time  the 
constitution  was  formed  ?  I  know  of  no  allusion  to  it,  but  in  the 
charter  of  the  society  at  Paterson,  and  one  other  case.  Smith's  His- 
tory of  New  Jersey,  129,  informs  us,  that  the  first  legislature  held 
in  New-Jersey,  authorized  private  property  to  be  taken  for  roads, 
by  paying  damages,  to  be  assessed  by  commissioners.  Will  it  be 
said  that  this  relates  to  public  highways?  So  do  the  cases  in  Eng- 
land. That  shows  that  the  rule  was  not  universal,  and  hence  the 
discretion  of  the  legislature.  These  facts  support  the  opinion  of 
judge  Baldwin,  in  the  case  referred  to;  to  which  I  recall  the  atten- 
tion of  the  court. 

But  I  think  there  is  a  provision  of  the  act  incorporating  this 
company,  which  has  a  bearing  on  this  question.  By  the  fifteenth 
section,  the  right  of  a  trial  by  jury  for  damages,  is  reserved  to  the 
landholders.  The  damages  must  be  assessed  by  appraisers,  to 
enable  the  company  to  go  upon  the  ground;  but  the  right  of 
trial  by  jury  is  not  taken  away;  the  remedy  is  left  open  to  all 
who  will  not  accept  the  sum  awarded  them.  How,  then,  is  the  con- 
stitution violated  ?  and  what  ground  has  the  complainant  to  come 
here  for  injunction  ?  I  insist  that  he  has  no  ground  to  claim  it  at 
the  hands  of  the  court. 

/.  If.  Williamson,  in  reply.  The  complainant  owns  a  valua- 
ble farm  on  the  river :  the  defendants  seek  to  take  a  part  of  it  for 
their  raceway.  In  constructing  that,  they  will  destroy  the  bank, 
which  forms  a  natural  protection  to  the  farm  against  the  river, 
and  destroy  a  fishery.  This  is  not  a  mere  case  of  trespass,  that 
may  be  compensated  in  damages,  but  a  clear  case  of  waste.  Ev- 
ery serious 'injury  to  the  inheritance,  in  waste:  2  Blac.  C.  280. 
It  is  no  answer  to  say,  that  the  property  is  of  little  value,  or  the 
damage  trifling.  It  is  the  peculiar  nature  and  situation  of  the 
property,  that  entitles  it  to  protection.  The  bank  of  the  river, 
here,  is  a  green  bank,  covered  by  a  grove  of  trees  in  front  of  the 
house,  and  extending  part  of  the  way  down  the  declivity.  They 
support  the  bank,  which  protects  the  farm  against  the  encroach- 
ments of  the  river.  It  is  said  they  are  forest  trees :  but  forest 


710  CASES  IN  CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co. 

trees  will  be  protected  in  equity,  if  useful  only  for  shade  or  orna- 
ment. That  they  are  necessary  to  preserve  the  bank,  I  refer  to 
the  affidavits.  Let  them  be  cut  down  and  the  bank  destroyed  and 
the  injury  is  irreparable.  The  case  in  7  John.  R.  was  a  mere  tres- 
pass, in  a  quarry  of  stone  of  no  special  value  that  could  not  be 
compensated  in  damages. 

It  is  said  the  waste  is  denied  by  the  answer :  that  is  under  the 
common  seal,  and  not  under  oath;  it  is  insufficient.  The  answer 
denying  the  equity  of  a  bill,  must  be  as  positive  as  the  bill  itself. 
The  opinion  of  judge  Washington,  which  has  been  cited,  is  entitled 
to  great  respect,  but  cannot  be  supported.  The  contrary  has  been 
decided,  in  New-York  and  in  this  state. 

The  fishery  is  valuable  :  it  has  been  used  as  a  fishery  for  the  last 
ten  years.  It  is  of  no  importance  that  it  has  not  been  entered  :  it 
exists,  and  may  be  entered  at  any  time.  And  if  we  own  but  a  part, 
we  are  entitled  to  protection  in  that  part.  We  are  told  we  have 
remedy  at  law  for  the  injury  we  may  sustain,  by  trespass,  ejectment, 
or  Certiorari.  The  remedy  at  law  is  inadequate.  We  seek  to  pre- 
vent the  injury  :  we  could  not  go  to  law  for  that.  The  courts  have 
concurrent  jurisdiction  in  some  cases,  but  this  court  alone  has  the 
power  of  prevention.  If  we  had  went  to  law,  the  company  would 
have  gone  on  to  destroy  our  property,  and  we  must  have  come  here 
for  a  preventive  remedy. 

But,  is  said,  our  application  is  too  late;  that  we  have  acquiesced 
in  the  proceedings  of  the  company.  Not  so:  the  complainant, 
when  applied  to,  stated  the  amount  he  demanded  ;  and  always  ex- 
pressed his  determination  to  contest  their  proceedings,  unless  they 
made  him  full  compensation ;  and  the  moment  they  cut  down  the 
first  tree,  he  filed  his  bill.  He  could  not,  with  safety,  have  filed 
it  before :  1  Swanst.  R.  243,  250. 

I  now  approach  a  question  of  deep  interest,  the  constitutionality 
of  the  charter.  We  object  to  this  exercise  of  legislative  authority, 
because  it  gives  power  to  divest  a  freehold,  and  give  it  to  a  private 
company,  for  private  purposes.  All  corporations,  except  political 
or  municipal,  are  private  corporations  ;  although  the  objects  of 
some  are  for  public  use.  In  this  class  come  all  corporations  for 
the  erection  of  turnpikes,  railroads,  and  canals.  They  are  high- 
ways. Every  one  has  a  right  to  use  them,  and  if  prevented  may 


JULY  TERM,  1832.  711 

Scudder  v.  Trenton  Delaware  Falls  Co. 

bring  his  action :  hence  they  are  for  public  use.  But  this  act 
was  passed  on  individual  application.  It  is  a  private  corporation. 
They  are  authorized  to  create  a  water  power,  and  may  let  or 
sell  water  privileges  to  individuals,  to  be  employed  by  them  for 
their  own  benefit.  The  property  taken,  will  be  private  property 
still,  and  for  private  use.  It  is  not  for  state  necessity,  or  public 
use;  for  which  purpose  only  can  private  property  be  taken. 
Hence  the  defendants'  counsel  are  driven  to  the  argument,  that 
this  is  a  project  of  great  public  utility,  calculated  to  promote  man- 
ufactures, increase  agriculture,  extend  commerce,  and  benefit 
the  community ;  and  that  this  is  such  a  public  use  as  will  justify 
the  taking  of  private  property.  But  will  the  public  have  a  right 
to  use  this  water  power?  Not  unless  they  purchase  it  of  the  com- 
pany. That  there  is  a  resulting  benefit  to  the  community,  avails 
nothing.  This  is  the  case  with  most  private  corporations;  they 
are  calculated,  in  some  respect,  to  benefit  the  community.  The 
bank  of  the  United  States,  although  the.  government  was  a  stock- 
holder, was  a  private  corporation,  and  for  private  use;  but  sup- 
posed to  be  beneficial  to  the  community,  and  useful,  if  not  neces- 
sary, to  the  government.  All  banks  are  considered  beneficial  to 
the  community;  they  promote  agriculture,  manufactures  and 
commerce.  What  would  this  water  power  avail  the  public,  with- 
out the  aid  of  bank  facilities?  Yet  private  property  cannot  be 
taken  to  erect  a  banking  house.  So  eVery  church,  college,  hos- 
pital, or  even  a  block  of  houses,  erected  in  a  populous  neighbor- 
hood, is  a  benefit  to  the  community.  But  this  is  not  the  public 
use  contemplated  in  the  constitution.  Private  property  could  not 
be  taken  for  such  purposes. 

It  is  said,  this  raceway  will  be  a  navigable  canal,  for  public 
use;  but  the  public  will  have  no  right  to  use  it,  unless  they  pur- 
chase the  right  of  the  company.  Nor  can  it  be  used  to  assist 
the  navigation.  They  must  come  out  where  they  go  in  ;  there 
is  no  provision  for  a  lock  to  let  them  out  at  any  other  point;  no 
authority  to  take  tolls;  no  regulation  for  passing  boats  or  right 
to  pass,  secured  to  the  public.  The  manifest  object  is,  not  to 
make  a  navigable  canal,  but  create  a  water  power,  for  manufac- 
turing purposes,  and  for  private  use.  There  must  be  a  public 
necessity,  a  state  necessity;  and  it  must  be  for  a  public  use, 


712  CASES  IN  CHANGER*. 

Seudder  v.  Trenton  Delaware  Falls  Co. 

in  which  all  the  community  may,  of  right,  participate,  to  authorize 
the  taking  of  private  property. 

This  is  the  first  attempt,  in  this  state,  to  take  private  property 
for  private  use.  It  is  a  precedent  of  dangerous  tendency,  and 
ought  to  be  resisted.  If  a  company  of  individuals,  or  a  corpo- 
ration, want  property  for  such  a  purpose,  let  them  purchase  it. 
Look  at  the  charter  of  the  society  at  Paterson.  When  that  act 
passed,  manufactures  were  in  their  infancy.  It  was  a  great  ob- 
ject to  introduce  them.  The  general  government  took  great  pains 
to  promote  it:  the  state  took  a  deep  interest  in  it.  That  compa- 
ny had  power  to  establish  manufactures,  and  build  navigable  ca- 
nals, designed  for  the  transportation  of  goods  and  passengers.  They 
are  authorized  to  take  private  property  for  the  use  of  their  canals, 
because  they  were  designed  for  public  use;  but  not  to  create  their 
water  power,  or  for  the  use  of  their  manufactories ;  which,  though 
beneficial  to  the  public,  were  for  the  private  use  of  the  corporation. 
That  act  was  drawn  by  Alexander  Hamilton.  It  was  one  of  the 
first  charters  granted  in  this  state  after  the  adoption  of  the  consti- 
tution, and  may  be  regarded,  in  some  measure,  as  a  cotemporaneous 
exposition  of  that  instrument. 

The  British  parliament  possess  no  power  to  take  private  property 
for  private  use.  .1  refer  to  the  celebrated  case  of  the  Isle  of  Han, 
noticed  by  the  court  in  2  Dal.  R.  314 ;  and  is  property  not  as  safe 
here  as  in  Great  Britain,  under  a  limited  monarchy,  with  no  writ- 
ten constitution  to  restrain  the  power  of  parliament? 

What  is  a  constitution  ?  It  is  the  supreme  law  of  the  land, 
paramount  to  the  power  of  the  legislature.  It  limits  the  exercise 
of  legislative  authority,  and  prescribes  the  orbit  in  which  it  must 
move:  2  Dal.  R.  308.  The  legislature  are  the  agents  of  the 
people;  their  power  is  delegated;  they  possess  none  but  what  is 
given  them  by  the  constitution,  expressly,  or  by  necessary  impli- 
cation. What  is  not  given,  is  reserved  to  the  people.  Story,  J., 
(speaking  in  reference  to  Rhode  Island,  where  they  have  no  writ- 
ten constitution,)  says,  It  may  well  be  doubted,  whether  the  na- 
ture of  society  and  of  government,  does  not  present  some  limits 
to  legislative  authority:  6  Cranch's  R.  135;  2  Peters'  R.  657. 
This  position  is  correct.  The  right  of  acquiring  and  possessing 
property,  is  one  of  the  natural,  inherent  and  inalienable  rights 


JULY  TERM,  1832.  713 

Scudder  v.  Trenton  Delaware  Falls  Co. 

of  man :  2  Dal  R.  310 ;  2  Slao.  C.  8,  n.  1  j  4  Blac.  C.  9,  n.  4. 
Its  protection  is  one  of  the  great  objects  of  civil  government: 

1  Blac.  C.  138-9. 

I  rely  upon  the  distinction,  that  although  private  property  may 
be  taken,  when  it  is  necessary  for  public  use;  it  cannot  be  taken 
for  private  use,  although  it  may  ultimately  benefit  the  public. 
The  only  case  to  the  contrary,  is  the  opinion  of  chancellor  Wai- 
worth.  He  goes  so  far  as  to  put  private  property  under  the  pow- 
er of  the  legislature,  in  the  case  of  state  expediency.  He  cites 

2  Kent's  C.  274-5,     This  authority  does  not  support  his  position. 
It  cannot  be  law;  or  we  live  under  a  despotism,  and  hold  our 
property  at  the,  will  of  the  legislature.     To  this  I  oppose  the  opi- 
nions of  Paterson,  Marshall,  and  Cranch.     I  repeat  it,  there  must 
be  a  stale  necessity  ;  it  must  be  taken  for  a  state  'use. 

Although  the  legislature  must  decide,  in  the  first  instance,  they 
are  not  the  exclusive  judges  of  the  'necessity,  or  use,  for  which 
private  property  may  be  taken  :  it  belongs  also  to  the  judiciary ; 
and  this  court  has  the  same  right  as  a  court  of  law,  to  decide  upon 
the  constitutionality  of  an  act  of  the  legislature.  If  this  court  has 
jurisdiction  of  a  cause,  on  equitable  grounds,  it  tries  all  matters 
connected  with  it.  It  is  not  bound  to  try  a  question  of  law,  and 
may  send  it  to  a  court  of  law  to  be  tried ;  but  it  has  the  power 
to  decide  it  without. 

But  if  the  legislature  had  power  to  authorize  the  taking  of  pri- 
vate property,  in  this  case,  we  object  to  £he  mode.  The  consti- 
tution says,  "  Private  property  may  be  taken  for  public  use, 
making  just  compensation."  How  is  that  compensation  to  be 
ascertained  ?  By  known  and  established  principles,  according  to 
the  law  of  the  land  :  I  Blac.  C.  138.  By  this  is  meant,  the 
right  of  applying  to  a  court,  and  having  a  trial  by  jury.  In  Van- 
home's  lessee  v.  Dorrance,  Paterson,  J.,  says,  There  are  only 
three  ways  in  which  the  amount  of  compensation  for  land  taken  by 
the  state,  can  be  ascertained:  by  agreement — by  commissioners 
mutually  chosen — or  by  a  jury.  He  says,  a  jury  is  a  necessary 
check  on  legislative  authority.  His  argument  is  conclusive.  But 
this  act  authorizes  it  to  be  done,  not  according  to  any  known 
rules  of  law,  but  in  a  summary  and  arbitrary  manner.  Com- 
missioners, appointed  without  the  consent  of  the  party,  proceed, 


714  CASES  IN  CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co. 

without  the  examination  of  witnesses,  without  jury,  verdict,  or 
judgment:  they  make  report,  not  to  any  court,  but  to  the  secre- 
tary of  state;  and  from  this  there  is  no  appeal.  Such  a  tribunal 
is  incompatible  with  the  principles  of  our  free  institutions.  Pri- 
vate property  is  sacred:  the  constitution  was  intended  to  make  it 
more  so.  That  guarantees  the  common  law  right  of  trial  by 
jury.  If  the  legislature  cannot  abolish  the  trial  by  jury,  which 
is  not  pretended,  can  they  dispense  with  it  in  any  case?  The 
chancellor  of  New- York  seems  to  think  it  may  be  done.  Of  what 
avail  then  is  our  constitution.  We  insist,  that  no  man  can  be 
divested  of  his  freehold  without  his  consent,  or  the  intervention  of 
a  jury.  Judge  Baldwin  says,  that  to  require  a  jury,  there  must 
be  a  disputed  fact  in  issue.  That  cannot  be  the  test;  for  when 
a  defendant,  in  an  action  sounding  in  damages,  suffers  judgment 
by  default ;  whereby  the  facts  are  admitted,  and  no  question  re- 
mains but  the  quantum  of  damages,  there  must  be  a  jury.  This 
is  the  case  in  every  instance  where  the  writ  of  ad  quod  damnum 
is  used.  Nothing  remains  to  be  ascertained  but  the  quantum  of 
damages.  But,  it  is  said,  that  in  this  state,  there  are  precedents 
for  taking  private  property  without  a  jury,  before  the  revolution. 
The  cases  referred  to  are  inapplicable,  and  do  not  support  the  posi- 
tion. The  ordinance  mentioned  in  Smith's  History  of  New-Jersey, 
was  under  the  government  of  the  proprietors,  who  owned  the  soil 
and  held  the  sovereign  power,  under  no  restriction  but  what  they 
themselves  imposed.  The  act  contained  in  Allison,  appointed 
commissioners  to  make  a  survey  and  estimate,  and  report  the 
practicability  and  probable  expense,  of  making  a  road.  But  in 
neither  case  was  power  given  to  take  land ;  and  both  were  before 
the  constitution  was  fully  established  as  part  of  the  law  of  this 
state,  and  the  right  of  trial  by  jury  became  the  unquestionable 
right  of  every  citiaen  of  New- Jersey.  The  framers  of  the  constitu- 
tion did  not  adopt  the  laws,  usages  or  innovations  of  the  proprie- 
tors: they  adopted  the  common  law  of  England,  and  with  it  the 
trial  by  jury;  and  from  the  manner  in  which  they  allude  to  it, 
and  their  manifest  solicitude  to  render  it  perpetual,  it  is  to  be  in- 
ferred that  they  meant  to  adopt  it  in  its  full  extent,  and  for  every 
purpose  to  which  it  was  applied  in  England. 

I  therefore  conclude,  that  in  New- Jersey  private  property  can 


JULY  TERM,  1832.  715 

Scudder  v.  Trenton  Delaware  Falls  Co. 

only  be  taken  for  state  necessity  or  state  use ;  not  for  private  use 
under  the  idea  that  the  state  may  be  benefitted ;  and  that  it  cannot 
be  taken  for  any  purpose,  without  the  intervention  of  a  jury. 

THE  CHANCELLOR.  It  is  always  important  for  a  court  to  ascer- 
tain, before  it  passes  upon  a  cause  submitted  to  it,  that  its  nature 
and  character  are  such  as  to  be  within  the  power  and  jurisdiction 
of  the  court;  and  especially  when  the  jurisdiction  is  questioned  or 
denied  by  the  party  upon  whom  the  decision  is  to  operate.  It  is 
peculiarly  important  for  a  court  of  equity,  whose  powers  are  extra- 
ordinary and  peculiar,  and  which  administers  relief  in  a  mode  un- 
known to  the  common  law. 

My  first  business  will  be,  to  inquire  whether  the  court  can  take 
jurisdiction  of  the  cause  now  before  it. 

The  power  of  a  court  of  equity  to  interpose  by  injunction  in 
cases  of  waste,  private  nuisance,  and  great  and  irreparable  injury 
to  the  inheritance,  is  as  well  established  as  any  that  the  court  now 
Exercises.  It  does  not  rest  on  modern  or  questionable  decisions, 
but  is  ancient,  uniform,  and  not  now  to  be  shaken.  The  late 
cases  have  so  construed  this  power  as  to  embrace  trespasses  of  a 
continuous  or  extraordinary  character:  Eden  on  Inj.  139;  Stevens 
v.  Beekman,  1  John.  C.  R.  318  :  and  they  have  gone  upon  the 
ground  that  the  property  to  be  protected  was  of  peculiar  value,  for 
the  injury  or  destruction  of  which  a  recompense  in  damages  could 
not  be  made. 

Upon  the  showing  of  the  complainant,  this  is  a  clear  case 
of  waste.  The  complainant  is  in  possession  of  a  farm  on  the 
river  Delaware.  The  house,  which  he  has  recently  erected, 
stands  upon  the  bank,  not  far  from  the  commencement  of  the 
declivity.  The  bank  along  which  the  water  sweeps  when  the 
river  is  full,  is  now  a  green  bank,  the  upper  part  of  which, 
through  the  whole  extent  o£  the  farm,  is  covered  with  a  grove 
of  trees.  The  lower  part,  from  the  water's  edge  to  the  height 
of  ordinary  freshets,  and  to  the  roots  of  the  trees,  has  been  se- 
cured at  great  expense,  by  covering  it  with  stones,  by  means  of 
which,  in  connection  with  the  trees,  the  bank  is  at  present  ef- 
fectually secured.  In  constructing  the  raceway,  as  at  present 
located,  this  green  bank,  a  part  of  which  is  immediately  in  frcnt 


716  CASES  IN  CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co. 

of  the  dwelling-house,  must  be  cut  down,  and  the  trees  destroyed, 
which  will  greatly  expose  the  property  to  the  encroachments  of  the 
river. 

The  answer,  it  is  true,  denies  that  the  route  of  the  raceway  runs 
through  the  property  in  such  a  way  as  to  occasion  great,  serious 
and  lasting  injury  to  the  interests  of  the  complainant  in  his  said 
farm.  It  alleges,  that  the  ground  to  be  occupied  will  not  exceed 
one  acre,  no  part  of  which  is  enclosed  or  has  ever  been  used  for 
the  purpose  of  cultivation,  and  that  it  will  not  be  necessary  to  re- 
move any  trees  or  timber  there  standing,  except  a  few  forest  trees, 
and  those  of  little  value. 

I  do  not  deem  it  necessary  to  inquire  how  far  the  court  is  bound 
to  respect  this  answer,  put  in  by  the  company  under  their  corpo- 
rate seal,  or  to  sit  in  judgment  on  the  opinion  of  judge  Washing- 
ton on  this  subject,  in  the  case  of  Haight  and  the  Morris  Aque- 
duct Co.  4  Wash.  C.  C.  601,  the  legality  of  which  was  de- 
nied at  the  bar ;  for  admitting  the  answer  to  be  true,  the  case 
made  by  the  bill,  answer,  and  affidavits,  is  sufficient,  in  my 
view,  to  make  out  the  apprehended  case  of  waste.  The  facts 
admitted  by  the  defendants,  that  a  part  of  the  bank  must  be 
taken  down,  and  a  part  of  the  trees  removed,  are  of  more  weight 
than  the  conclusions  which  they  undertake  to  draw  from  them, 
that  the  injury  resulting  will  be  neither  serious  nor  lasting.  It  is 
clearly  shown  that  the  bank  as  it  now  is,  with  the  trees  upon  it, 
form  a  very  valuable  protection  to  the  property.  The  importance 
of  the  trees  is  demonstrated  by  a  fact  stated  by  one  of  the  wit- 
nesses^— that  within  his  recollection,  the  trees  upon  the  bank  of 
the  river  about  a  mile  below  the  complainant's,  were  cut  down, 
and  although  great  labor  had  been  expended  and  great  expense 
incurred  in  securing  the  bank,  yet  that  the  river  has  very  rapidly 
encroached  upon  it.  He  further  states,  that  the  spot  spoken 
of  is,  as  he  thinks,  less  likely  to  be«injured  by  the  river  than  the 
farm  of  complainant;  .the  channel  of  the  river  near  the  former 
place  being  free  from  islands  and  all  other  obstructions  to  its 
natural  course.  If  the  apprehended  or  threatened  act  of  the 
company  will  be  a  lasting  injury  to  the  inheritance  of  the  com- 
plainant, (of  which  there  is  no  room,  as  I  think,  to  doubt,)  it 
forms  a  case  of  waste,  over  all  which  cases  the  court  has  an  uu- 


JULY  TERM,  1832.  717 

Scudder  v.  Trenton  Delaware  Falls  Co. 

doubted  jurisdiction,  and  will  exercise  its  preventive  power  on  all 
proper  occasions. 

But  if  this  should  be  considered  HI  the  light  of  a  trespass,  I 
should  feel  no  difficulty  in  entertaining  jurisdiction.  It  is  not  an 
ordinary  case,  where  the  damage  is  temporary,  or  of  such  a 
character  as  to  admit  of  full  compensation  in  damages.  The 
defendants  intend  not  merely  to  enter  and  carry  away  the  pro- 
duct of  the  soil,  or  even  a  part  of  the  soil  itself,  which  the  com- 
plainant might  afterwards  replace ;  they  seek  to  appropriate  the 
land  to  their  own  use,  permanently  and  absolutely ;  to  take  en- 
tire possession  of  this  part  of  his  property,  and  place  it  beyond 
his  power  or  control,  as  though  he  had  never  owned  or  possessed 
it  This  would  be  a  complete  severance  of  that  part  of  the  es- 
tate from  the  residue,  and  a  destruction  of  it  in  the  character  in 
which  the  complainant  now  enjoys  it;  and  it  would  be  strange 
if  this  court  had  not  authority  to  interpose  its  arm  for  the  pre- 
vention of  such  an  act.  In  Jerome  v.  Ross,  7  John.  C.  R.  331, 
the  court  refused  to  interfere  in  a  case  where  the  trespass  charged 
was  for  entering  upon  the  land  of  the  plaintiff,  and  digging  and 
taking  away  large  parcels  of  stone  from  a  ledge  of  rock  on  the 
premises.  It  was  not  charged,  nor  did  it  appear,  that  the  ledge 
of  rock  was  of  any  particular  use  or  value  to  the  plaintiff,  or 
that  it  was  desirable  for  building,  fencing,  or  any  other  purpose 
either  for  use  or  ornament;  and  the  court  was  of  opinion  that 
die  plaintiff's  remedy  was  in  a  court  of  law  for  damages.  The 
distinction  between  that  case  and  the  present  one  is  very  strongly 
marked  ;  and  taking  it  on  the  ground  upon  which  it  was  placed 
by  the  chancellor,  it  is  an  authority  in  favor  of  the  complainant. 
From  the  reasoning  of  the  court,  and  the  cases  cited,  there  is  no 
doubt,  that  if  the  trespass  complained  of  had  been  destructive  of 
the  estate,  he  would  have  injoined  the  defendant ;  and  this  doc- 
trine is  supported  by  a  grelit  variety  of  cases,  in  England  and 
this  country.  See  7  Ves.  305,  Hanson  v.  Gardiner;  1  Bro. 
C.  C.  588,  Robinson  v.  Ld.  Byron ;  3  P.  Wms.  -255,  Gibbs 
v.  Cole;  15  Ves.  138,  CrocJcford  v.  Alexander;  2  Dow  P.  C. 
520 ;  1  John.  C.  R.  318,  Stevens  v.  Beekman  ;  2  John.  C.  R.  463, 
Belknap  v.  Belknap ;  9  Wheat.  840,  Osborne  v.  Bank  of  the 
U.S. 


718  CASES  IN  CHANCERY. 


Scudder  v.  Trenton  Delaware  Falls  Co. 


Without  pursuing  this  subject  further,  I  shall  consider  that  the 
court  has  full  and  complete  jurisdiction  in  this  case. 

It  is  insisted,  however,  by  the  defendants  in  this  cause,  that  if 
the  court  has  jurisdiction,  it  ought  not  to  be  exercised  at  this  time 
in  favor  of  the  complainant.  It  is  said  he  has  lain  by  and  slept 
on  his  rights;  has  seen  the  defendants  making  contracts  for,  and 
expending  large  sums  of  money  in,  the  preparation  of  their  work, 
and  taken  no  step  to  prevent  or  restrain  them,  until  the  present 
bill  was  filed.  If  this  objection  be  well  founded,  it  is  fatal  to  the 
application.  It  is  a  law  of  the  court,  and  a  dictate  of  sound  rea- 
son, that  when  a  party  desires  extraordinary  aid,  he  must  be  prompt 
in  his  application. 

The  facts  in  this  case  show  that  the  complainant  did  not  con- 
sent to  give  his  land  for  the  purposes  of  the  company,  and  that 
no  agreement  was  made  with  him  fixing  the  amount  of  compen- 
sation he  was  to  receive.  Upon  this  is  founded  the  application  to 
the  chief  justice  for  the  appointment  of,  commissioners  to  make 
an  appraisement  of  the  value  of  the  land,  and  the  damages  the 
complainant  was  entitled  to  receive.  After  the  valuation  was 
made,  and  when  the  amount  of  it  was  tendered,  he  refused  to 
accept  it  as  a  just  compensation ;  and  gave  notice,  that  unless 
the  company  paid  to  him  what  he  was  willing  to  receive  for  the 
property,  he  would  contest  the  validity  of  their  proceedings.  His 
courtesy  to  the  commissioners,  in  permitting  them  to  walk  on  and 
view  the  ground,  cannot  deprive  Ixim  of  his  rights ;  nor  does  the 
fact,  that  he  went  with  them  over  the  ground  and  explained  to 
them  the  nature  and  extent  of  the  injury  he  was  about  to  sus- 
tain, vary  the  case  materially.  He  did  not  appear  before  the 
commissioners  when  they  met  to  make  up  their  report,  either  in 
person  or  by  attorney.  He  fixed  his  price  for  his  property.  If 
the  commissioners  had  thought  proper  to  award  him  that  amount, 
or  if  the  company  had  thought  proper  to  pay  it  to  him,  he  would 
have  waived  all  objections  to  their  power,  and  to  the  mode  of 
proceeding.  He  had  a  perfect  right  to  do  so.  The  company 
could  not  have  been  deceived,  for  they  knew  the  determination 
he  had  made.  They  might  have  hoped,  and  probably  did  hope, 
that  the  complainant  would  be  induced  to  alter  his  mind,  and 
accept  the  sum  awarded.  However  this  may  be,  if  they  went 


JULY  TERM,  1832.  719 

Scudder  v.  Trenton  Delaware  Falls  Co. 

on  under  such  circumstances  they  proceeded  at  their  peril.  It 
will  not  avail  them  to  say,  that  the  complainant  saw  them  com- 
mencing operations,  and  expending  large  sums  of  money,  know- 
ing that  the  raceway  must  necessarily  be  constructed  through  his 
Jand,  and  yet  that  he  took  no  means  to  prevent  it ;  that  he  sued 
out  no  Certiorari,  and  filed  no  bill  ;  and  that,  having  neglected  to 
take  any  legal  measure,  he  is  now  too  late,  and  must  lose  the 
privilege  of  the  preventive  remedy  of  the  court.  I  do  not  perceive 
in  this  any  laches  deserving  so  severe  a  visitation.  The  com- 
plainant, it  is  true,  might  have  filed  his  bill  at  an  earlier  day, 
placing  himself  upon  the  ground,  that,  as  the  survey  was  filed 
and  could  not  be  departed  from,  the  danger  was  impending  and 
the  injury  might  be  committed  at  any  moment.  The  risk  of  sus- 
taining the  bill  at  that  time  would  have  been  upon  him,  and  he 
might  have  taken  it  if  he  had  chosen  to  do  so.  But  it  must  be 
remembered  that  the  company  had  it  in  their  power  to  bring  this 
difficulty  to  an  issue  before  they  had  expended  any  thing  more 
than  was  necessary  to  make  their  surveys.  They  could  have 
gone  upon  the  property,  as  they  afterwards  did,  and  commenced 
operations.  If  the  complainant  had  then  remained  silent,  and 
acquiesced  in  the  act ;  if  he  had  seen  them  cut  down  the  trees 
and  make  half  the  excavation,  and  had  then  applied  for  an  in- 
junction to  prevent  its  completion;  or  if  he  had  permitted  the 
raceway  to  be  completed,  and  then  sought  to  enjoin  them  from 
letting  in  the  water,  he  would,  have  been  too  Jate.  This  court 
would  have  turned  him  over  to  his  legal  remedy  for  redress.  But 
under  the  circumstances,  was  it  at  all  necessary  that  the  com- 
plainant should  do  more  than  he  did  ?  He  had  refused  to  accept 
of  the  sum  awarded,  and  made  known  his  determination  to  stand 
upon  his  rights,  unless  the  company  paid  to  him  the  amount  that 
he  deemed  a  proper  compensation.  It  was  not  necessary  for  him 
to  do  more,  until  his  rights  were  invaded.  Justice  to  the  com- 
pany did  not  require  it ;  and  if  from  his  not  acting  sooner,  the 
company  drew  the  conclusion  that  he  did  not  intend  to  act  at  all ; 
might  not  he,  from  the  fact  that  the  company  was  constantly 
expending  large  sums  of  money  with  full  knowledge  that  thia 
difficulty  remained  open,  with  much  more  propriety  have  drawn 


720  CASES  IN  CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co. 

the  conclusion,  that  they  intended  to  pay  him  his  price  for  his 
property  ? 

It  is  not  unlikely  that  there  have  been  misapprehensions  on  both 
sides,  and  that  both  parties  have  entertained  the  hope  that  the  dif- 
ference would  be  in  some  way  adjusted  and  litigation  prevented, 
and  that  in  this  they  have  both  been  disappointed.  It  is  not  per- 
ceived, however,  that  their  legal  rights  are  in  any  wise  varied  by 
it ;  and  under  the  clear  impression  that  the  application  of  the  com- 
plainant is  not  too  late,  I  shall  now  proceed  to  consider  the  remain- 
ing and  more  important  questions  in  this  cause. 

It  appears  from  the  case  made,  that  the  proceedings  of  the 
defendants  are  sought  to  be  justified  under  the  act  of  incorpora- 
tion already  mentioned,  giving  them  authority  to  create  a  water 
power.  This  act,  as  we  have  seen,  provides  the  mode  to  be 
pursued  by  the  company  in  surveying,  appropriating  and  ac- 
quiring title  to  such  lands  and  property  as  may  be  necessary  for 
the  purposes  of  their  grant.  It  requires^  a  survey  ;  an  agreement 
between  the  parties,  or,  in  case  of  disagreement,  an  assessment 
by  three  indifferent  men ;  and  a  payment  or  tender  of  the  amount 
appraised. 

There  is  no  complaint  in  this  case  that  the  company  have  ex- 
ceeded the  limits  of  the  power  given  them,  or  that  they  have 
abused  or  misapplied  it.  In  all  such  instances  of  abuse  or  mis- 
conduct, the  court  will  interfere  ;  but  it  will  not  give  its  aid  where 
the  powers  granted  have  been  exercised  in  good  faith,  or  where 
they  are  discretionary,  or  where  the  right  is  doubtful :  Coop.  Eq. 
77;  7  John.  O.  E.  340;  Jerome  v.  Ross;  2  Dow,  251.  The 
complaint  is  of  a  more  .serious  character,  deeply  affecting  the 
claims  of  the  defendants,  and  the  rights  of  the  community.  It 
is,  that  the  act  of  incorporation,  though  emanating  from  the  le- 
gislative authority  of  the  state,  confers  no  power  to  take  the  com- 
plainant's property  in  the  way,  and  for  the  uses,  in  which  it  is  de- 
signed or  attempted  to  be  taken  ;  that  it  is  unconstitutional,  and 
therefore  void. 

Two  grounds  are  taken  : 

One  is,  that  the  act  assumes  to  vest  the  complainant's  right 
and  property  in  his  lands,  or  a  part  of  them,  in  the  defendants, 
without  a  just  compensation  therefor,  and  without  an  opportunity 


JULY  TERM,  1832.  721 


Scudder  v.  Trenton  Delaware  Falls  Co. 


of  having  the  compensation  ascertained  by  a  jury  of  the  coun- 
try. 

Another  is,  that  the  land  is  sought  to  be  taken,  not  to  answer 
any  state  necessity,  nor  for  the  benefit  of  the  community  at  large, 
nor  for  any  public  use  whatever,  but  solely  for  the  private  gain 
and  emolument  of  the  said  company. 

The  first  ground  presents  the  question,  whether  in  cases  of  this 
kind,  private  property  can  be  taken,  without  the  intervention  of  a 
jury  to  ascertain  the  compensation  which  the  party  is  to  receive  as 
an  equivalent.  The  fifth  amendment  of  the  constitution  of  the 
United  States  declares,  that  private  property  shall  not  be  taken  for 
public  use,  without  just  compensation  ;  but  it  is  silent  as  to  the 
mode  of  fixing  the  compensation,  when  there  is  no  agreement.  The 
twenty-second  section  of  the  constitution  of  our  state,  provides  that 
the  common  and  statute  law  of  England,  so  far  as  they  have  been 
adopted,  shall  continue  in  force  in  this  state  till  altered  by  the 
legislature,  and  that  the  inestimable  right  of  trial  by  jury  shall  be 
and  continue  without  repeal  for  ever. 

In  this  branch  of  the  argument,  I  assume  the  principle,  thatt 
the  property  to  be  taken  is  for  public  use ;  that  it  may,  under  the- 
constitution  of  the  United  States,  be  divested  on  making  just 
compensation.  The  right  of  the  state  to  take  private  property  for, 
public  use,  is  conceded  as  a  general  proposition.  It  is  a  right  apper- 
taining to  sovereignty;  one  which  the  state  may  freely  exercise  on 
all  proper  occasions,  and  which  a  jury  has  no  power  to  control. 
It  cannot  be  pretended,  therefore,  that  before  a  state  may  exer- 
cise this  high  attribute  of  sovereign  power,  a  jury  must  pass  on 
the  legality  or  propriety  of  the  act.  This  would  be  to  place  the 
necessities  of  the  state,  in  some  instances,  and  its  privileges,  in 
others,  in  the  keeping  of  a  jury  of  the  country,  which  would  be 
contrary  to  the  established  order  of  all  governments.  The  right, 
then,  cannot  be  made  the  subject  matter  of  trial  by  jury.  But 
compensation  is  to  be  made,  and  that,  too,  a  just  compensation  ; 
and  the  question  is,  whether  that  just  compensation  can  be  a^- 
certained  in  any  other  mode  than  by  jury.  No  difficulty  could 
arise  on  this  subject,  but  for  the  constitutional  provision.  There 
is  no  reason  why  three  indifferent  men,  selected  by  the  chi^f 
justice  from  the  body  of  the  state,  for  their  probity  and  indepenr- 

2z 


722  CASES  IN  CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co. 

dence,  should  not,  in  a  mere  matter  of  valuation,  exercise  as  just  a 
judgment,  and  be  in  all  things  as  discreet  and  impartial,  as  a  jury 
of  the  vicinage. 

Does  a  sound  construction  of  the  constitution  require  that  these 
valuations  should  be  made  by  jury  ? 

We  ail  revere  the  constitution,  and  profess  to  be  regulated  by 
its  provisions.  We  believe  it  to  be  the  supreme  law  of  the  land, 
and  "paramount  to  the  power  of  the  legislature;"  and  that, 
whenever  the  legislature  undertakes,  in  the  exercise  of  its  au- 
thority, to  transcend  the  limits  clearly  prescribed  to  it  by  the 
constitution,  its  acts  are  void.  It  is,  nevertheless,  our  duty  to 
give  it  a  rational  and  just  interpretation  ;  avoiding,  on  the  one 
hand,  a  spirit  of  slavish  fear,  and  on  the  other,  a  spirit  of.  rest- 
less innovation.  The  constitution  provides,  that  the  common 
law  of  England,  as  well  as  so  much  of  the  statute  law,  as  have 
heretofore  been  practised  in  this  state,  shall  remain  in  force  until 
altered,  <fec. ;  and  that  the  inestimable  right  of  trial  by  jury  shall 
remain  confirmed  as  a  part  of  the  law  of -this  state,  without  repeal, 
for  ever. 

It  is  unnecessary  to  inquire  into  the  origin  of  the  trial  by  jury, 
or  how  far,  and  to  what  particular  cases,  it  has  been  extended 
in  England.  How  it  was  exercised  in  the  colony,  at  the  time  of 
adopting  the  constitution,  is  a  more  important  inquiry.  It  was 
a  part  of  the  common  law,  so  far  as  that  had  been  adopted  or 
acted  on  here  at  that  time;  so  far  it  was  to  remain  the  Jaw  of 
the  state  until  altered  ;  but  that  part  of  it  relating  to  trial  by  ju- 
ry was  to  remain  without  repeal.  It  was  to  remain,  as  it  had 
theretofore  been  in  use.  Our  means  of  information  as  to  the  prac- 
tice in  cases  like  the  present,  before  and  at  the  time  the  consti- 
tution was  adopted,  are  limited.  They  are  sufficient,  however, 
to  satisfy  us,  that  the  writ  of  ad  quod  damnum  was  not  in  use 
universally.  In  Smith's  History  of  New-Jersey,  we  find  that 
in  1681,  under  the  proprietary  government,  certain  commission- 
ers for  the  settling  and  regulating  of  lands  in  this  province,  or- 
dained, that  in  laying  out,  or  setting  forth  as  it  is  termed  in 
the  regulations,  all  public  highways,  the  owners  of  lands,  when 
such  public  highways  shall  be  laid  forth,  shall  be  allowed  reasona- 
iJe  satisfaction  in  lieu  thereof,  at  the  discretion  of  the  commission- 


JULY  TERM,  1832.  723 


Scudder  v.  Trenton  Delaware  Falls  Co. 


ers.  By  looking  a  little  further  into  this  matter,  it  appears,  that 
these  commissioners  for  regulating  lands,  &c.  were  appointed  by 
the  first  provincial  assembly  of  West  Jersey,  assembled  at  Bur- 
lington in  1681:  Learning  and  Spieer,  440.  And  it  is  re-' 
markable,  that  the  assembly  at  the  same  session  passed  a  solemn 
act,  general  and  fundamental  in  its  character,  and  in  many  re- 
spects corresponding  with*a  bill  of  rights,  in  which  they  declare, 
"  that  no  proprietor,  freeholder,  or  inhabitant  of  the  province, 
shall  be  deprived  or  condemned  of  life,  limb,  liberty,  estate,  pro- 
perty, or  any  ways  hurt  in  his  or  their  privileges,  freedoms,  or 
franchises,  upon  any  account  whatsoever,  without  a  due  trial 
and  judgment,  passed  by  twelve  good  and  lawful  men  of  the 
neighborhood,  first  had,  or  according  to  the  laws  of  Eng- 
land." Either  the  ordinance  of  the  commissioners  for  regu- 
lating lands,  acting  under  the  authority  of  this  very  assembly, 
and  some  of  whom  were  members  of  it,  was  irregular  and  un-r 
lawful,  or  the  valuation  thus  to  be  made  for  private  property  ta- 
ken for  public  use,  was  not  considered  a  case  in  which  a  jury 
was  indispensably  necessary  according  to  the  laws  of  England. 
The  latter  branch  of  the  proposition  is  by  far  the  more  probable, 
and  if  it  be  correct  it  proves  satisfactorily  that  they  did  not  apply 
the  common  law  right  of  trial  by  jury  to  a  case  of  that  kind. 
In  1765,  under  the  royal  government,  provision  was  made  by 
law  for  the  assessment  of  damages  by  commissioners,  on  the  oc- 
casion of  laying  out  certain  straight  roads  in  the  province:  Al- 
lison, 273.  Before  this  time,  there  was  a  general  road  law,  by 
which  private  property  was  taken  and  appropriated  as  it  now  is, 
without  compensation,  and  which  had  reference  only  to  the  ordi- 
nary roads  from  one  neighborhood  or  settlement  to  another.  It 
was  supposed  by  the  legislature  that  it  would  greatly  facilitate 
the  conveyance  of  letters  by  the  post,  be  of  great  importance  to 
his  majesty's  service,  and  to  the  commercial  interests  and  general 
convenience  of  the  inhabitants  of  the  province,  to  have  some  of 
the  principal  highways  shortened.  Commissioners  to  make  the 
necessary  surveys  and  estimates  were  appointed,  with  power  to 
enter  and  pass  any  lands  through  which  the  straight  lines  might 
run.  They  were  directed  to  make  an  estimate  of  the  whole  ex- 
pense, and  also  of  the  damages  it  might  occasion  to  any  person 


724  CASES  IN  CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co. 

through  whose  lands  it  might  pass,  and  a  provision  was  made 
for  paying  the  whole  expense  by  lottery.  It  would  appear  from 
»this,  that  the  legislature  thought  these  communications,  when 
thus  opened,  would  be  more  immediately  important  to  the  public 
at  large,  and  especially  to  the  government;  and  that  in  taking 
private  property  for  these  purposes,  tj^ere  was  a  propriety  and 
moral  fitness  in  making  compensation  to  the  owners.  Commis- 
sioners, as  we  have  seen,  were  appointed  to  make  an  assessment 
of  the  damages  to  be  sustained  by  individuals.  These  cases  are 
important  to  show  what  was  the  practice  before  the  revolution  ; 
and  if,  in  consequence  of  the  payment  of  damages,  the  property 
of  the  soil  became  vested  in  the  state,  as  I  apprehend  was  the 
fact  in  the  last  case,  it  is  directly  in  point.  That  the  property 
was  absolutely  divested,  and  became  the  property  of  the  state,  is 
inferred  from  the  fact  that  these  particular  roads,  have  been,  in 
all  our  road  laws  save  the  last,  cxcepted  out  of  their  general  op- 
eration, and  declared  to  be  unalterable  by  surveyors  of  the  high- 
ways, or  any  other  persons.  I  do  not  find  any  cases  about  this 
time,  in  which  the  writ  of  ad  quod  damnum  was  resorted  to, 
or  an  assessment  by  jury  ordered  ;  and,  judging  from  what  I 
have  been  able  to  find,  I  cannot  come  to  the  conclusion  that  in 
1776,  when  the  constitution  was  adopted,  the  trial  by  jury  was 
extended  to  this  kind  of  assessments,  and  that  it  was,  therefore, 
the  common  law  of  the  land.  It  may  be  useful  to  inquire,  what 
has  been  the  practice  since.  In  1791,  the  act  was  passed  incorpo- 
rating the  society  for  useful  manufactures  at  Patersou.  This  act 
was  prepared  with  great  care  and  particularity,  and  provides  for 
an  assessment  by  the  writ  of  ad  quod  damnum  and  a  jury.  The 
most  of  the  acts  passed  since  that  period,  in  which  private  proper- 
ty is  authorized  to  be  taken  for  public  use,  are  acts  authorizing 
the  making  of  turnpike  roads  or  canals;  and  they  have  almost 
uniformly,  till  of  late,  followed  that  precedent,  so  far  as  regards 
the  taking  of  lands  to  be  permanently  occupied.  There  are  some 
acts  in  which  a  different  mode  has  been  pursued.  In  1802,  the 
legislature  authorized  Nathaniel  Budd  to  appropriate  to  his  own 
use,  for  the  purposes  of  a  ferry  at  Paulus  Hook,  two  acres  of  land 
which  was  in  dispute  between  the  heirs  of  Kennedy  and  the  cor- 
poration of  Bergen.  The  act  provided,  that  if,  after  the  coutro- 


JULY  TERM,  1832.  725 

Scudder  v.  Trenton  Delaware  Falls  Co. 

versy  was  ended,  the  successful  party  and  the  said  Budd  could 
not  agree  as  to  the  value  of  the  land,  or  the  sum  to  be  paid  by 
Budd,  that  then  he  should  pay  such  sum  annually  by  way  of 
ground  rent,  as  should  be  adjudged  by  three  disinterested  free- 
holders, appointed  by  one  of  the  justices  of  the  supreme  court ; 
or  that  Budd  should  be  paid  for  his  improvements  an  amount  to 
be  ascertained  in  the  sajne  way :  1  Pamph.  Laws,  153.  See 
also  2  Pamph.  Laws,  747,  as  to  the  mode  of  making  assess- 
ment in  relation  to  the  drowned  lands  in  Sussex.  In  1798,  it 
was  enacted,  that  all  those  who  should  receive  damage  by  the 
erection  of  a  bridge  over  the  river  Delaware  at  Trenton,  should 
be  compensated  in  damages,  and  the  damages  assessed  by  com- 
missioners to  be  appointed  by  some  of  the  justices  of  the  supreme 
court. 

So  far  as  relates  to  the  damages  sustained  by  taking  away 
gravel,  stones,  or  other  materials  for  constructing  roads,  canala 
and  other  improvements,  .most  of  the  charters  have  left  them  to 
be  ascertained  by  arbitrators  or  commissioners.  And  yet  it  is 
evident,  that  in  many  instances,  the  taking  away  of  such  ma- 
terials, and  appropriating  them  to  the  use  of  a  company,  is  quito 
as  injurious  as  appropriating  the  whole  land.  If  it  be  gravel, 
the  value  of  the  property  may  be  destroyed  when  that  is  gone, 
If  it  be  a  quarry,  of  what  benefit  will  the  property  be  when  the 
stone  is  exhausted  ?  The  principle  is  the  same,  whether  the  entire 
possession  of  the  land  be  taken,  or  whether  the  possession  be  as- 
sumed of  one  half  of  it.  It  is  not  easy  to  perceive  why  a  different 
course  of  proceeding  has  been  adopted  in  the  two  cases,  if  both 
were  within  the  range  of  constitutional  provision ;  and  if  one  is, 
will  it  be  said  that  both  are  not. 

It  is,  nevertheless,  certainly  true,  that  since  the  year  1800, 
almost  all  the  acts  passed  have  provided  for  assessments  by  a 
jury  where  lands  have  been  taken  absolutely.  This  shows  the 
strength  of  popular  feeling  in  favor  of  that  mode,  rather  than  ita 
exclusive  constitutionality.  It  may  be  a  strong  argument  with 
the  legislature  in  favor  of  the  policy  of  providing  that  mode,  as 
most  satisfactory,  and  most  analagous  to  the  genius  of  our  insti- 
tutions; but  does  not  satisfy  me  that  the  mode  adopted  in  the  act 
under  consideration  is  unconstitutional,  and  therefore  void.  The 


726  CASES  IN  CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co. 

evidence  in  favor  of  the  practice,  before  the  adoption  of  the  consti- 
tution, is  very  strong;  and  I  ana,  moreover,  strongly  inclined  to 
the  opinion,  that  the  words  of  the  constitution  are  fully  satisfied  by 
preserving  the  trial  by  jury  in  all  criminal  cases,  and  all  trials  of 
right  in  suits  at  common  law. 

I  conclude,  then,  that  the  first  objection  against  the  constitu- 
tionality of  the  present  act,  is  not  sustained. 

The  second  objection  is,  that  the  land  is  sought  to  be  taken,  not 
to  answer  any  state  necessity,  nor  for  the  benefit  of  the  community 
at  large,  nor  for  any  public  use  whatever,  but  solely  for  the  private 
gain  and  emolument  of  the  company. 

This  presents  a  grave  and  interesting  subject  for  inquiry.  It 
strikes  at  the  constitutionality  of  the  law,  not  merely  in  relation  to 
its  details,  and  minor  provisions,  but  its  very  nature  and  objects  ; 
and  if  the  blow  be  well  aimed,  it  is  utter  destruction. 

It  is  admitted,  that  private  property  shall  not  be  taken  .for  pri- 
vate use.  The  legislature  has  no  right  to  take  the  property  of 
one  man  and  give  it  to  another,  even  upon  compensation  being 
made.  I  have  already  adverted  to  the  right  of  the  state  to  take 
private  property  for  public  use,  and  need  not  repeat  what  has 
been  said.  This  right  was  originally  founded  on  state  necessiiy. 
If  its  exercise  had  been  confined  to  this  limit,  there  could  be  no 
doubt  as  to  this  case ;  for  it  will  not  be  pretended  that  the  enjoy- 
ment of  the  complainant's  property  is  called  for  by  any  necessity 
of  the  state,  or  that  it  is  to  be  appropriated  in  that  way.  In  pro- 
cess of  time  the  right  has  been  more  liberally  construed.  The 
term  public  use  has  been  substituted  ;  and  what  shall  be  con- 
sidered as  public  use,  is,  under  the  decisions  of  our  courts,  an 
unsettled  question.  It  is  not  limited  to  the  actual  use  and  occu- 
pation of  the  property  by  the  state ;  for  private  property  is  taken 
in  many  instances,  when  the  state,  in  its  sovereign  capacity,  does 
not  and  cannot  occupy  it.  It  is  not  limited  to  public  political 
corporations  ;  for  the  right  of  private  corporations,  to  take  private 
property  for  a  variety  of  purposes,  such  as  the  construction  of  ca- 
nals, turnpike  roads,  &c.,  is  not  disputed  at  this  day.  Nor  is  it 
limited  to  private  corporations  whose  sole  object,  or  even  whose 
primary  object  it  is,  to  promote  the  public  good.  Such  corpora- 
tions are  not  to  be  found.  Private  interest  or  emolument,  is  the 


JULY  TERM,  1832.  727 


Scudder  v.  Trenton  Delaware  Falls  Co. 


primum  mobile  in  all.  The  public  interest  is  secondary  and  conse- 
quential. Where,  then,  shall  the  line  be  drawn  by  this  court, 
called  on  as  it  now  is  to  decide  on  the  point? 

Before  I  undertake  to  express  any  opinion,  it  will  be  well  to  see 
that  I  am  in  the  line  of  duty  ;  for  it  is  contended  on  the  part  of 
the  defendants,  that  the  power  of  judging  on  this  subject  is  com- 
mitted to  the  legislative  department  of  the  government  alone, 
and  that  the  judiciary  cannot  interfere.  This  doctrine  the  court 
can  in  no  wise  admit.  The  legislature,  in  this  state,  is  not  om- 
nipotent, as  was  the  British  parliament.  It  is  subordinate  to  the 
constitution  ;  and  if  it  transcend  its  power,  its  acts  are  void,  and 
it  is  the  duty  of  the  judiciary  to  declare  them  so.  The  duty  is  at 
all  times  unpleasant,  but  no  independent  tribunal  will  hesitate  to 
do  it  in  clear  cases.  The  opinion  of  chancellor  Kent,  in  his  Com- 
mentaries, (2  Kenty  276,)  does  not  support  the  position  of  the 
learned  counsel.  The  author  remarks,  that  it  undoubtedly  must 
rest  in  the  wisdom  of  the  legislature  to  determine  when  public  use 
requires  the  assumption  of  private  property.  I  do  not  understand 
by  this,  that  the  legislature  is  to  be  sole  judge  of  what  is  meant  by 
public  use ;  but  that  the  fact  being  established,  that  private  pro- 
perty of  a  particular  character  may  be  taken  and  appropriated  to 
public  purposes,  it  is  for  the  wisdom  of  the  legislature  to  say  when 
that  appropriation  shall  be  made.  That  the  commentator  did  not 
intend  to  be  understood  as  saying,  that  fehe  legislature  was  to  be 
sole  judge  in  this  case,  is  evident ;  for  he  admits  afterwards,  that 
if  the  legislature  should  take  the  property  of  A.  and  give  it  to  B., 
the  law  would  be  unconstitutional  and  void.  And  yet  who  is  to 
judge  that  the  property  thus  taken  from  one  and  given  to  another, 
was  not  intended  by  the  legislature  for  public  use  or  benefit  ?  Who 
is  to  declare  it  unconstitutional  and  void,  after  they  have  deter- 
mined its  propriety  ? 

Not  doubting  that  the  court  may  safely  sit  in  judgment  on  this 
matter,  it  only  remains  to  inquire,  whether  the  use  to  which  the 
property  is  to  be  appropriated,  is  a  public  use.  It  has  been  seen, 
that  turnpike  roads  and  canals  are  considered  of  a  public  nature, 
go  far  as  to  authorize  the  taking  of  private  property  for  their  con- 
struction. Railroads  have  lately  been  added  to  this  class  of  pub- 
lic improvements.  In  the  case  of  Joseph  Buonaparte  v.  The 


728  CASES  IN   CHANCERY. 

Scudder  v.  Trenton  Delaware  Falls  Co. 

Camdcn  and  Amboy  Railroad  and  Transportation  Compa- 
ny, the  circuit  court  refused  to  grant  an  injunction,  applied  for 
en  the  ground  that  the  purpose  to  which  the  land  was  to  be  ap- 
plied was  a  private  and  not  a  public  purpose.  The  same  course 
was  taken  by  chancellor  Walworth^  in  the  case  of  Beekman  v. 
The  Saratoga  and  Schenectady  Railroad  Company.  It  is 
contended,  however,  that  the  present  case  is  going  a  step  further 
than  has  yet  been  done.  Turnpike  roads  have  been  considered 
as  public,  or  as  appropriated  to  public  uses,  because  every  one 
has  a  right  to  travel  them  on  paying  the  regular  toll.  Railroads 
have  been  considered  public,  because  they  facilitate  the  convey- 
ance of  passengers  and  the  transportation  of  merchandize,  and 
thereby  benefit  the  community  ;  whereas  the  object  of  the  present 
franchise  is  to  create  a  water  power,  and  erect  thereon  extensive 
man ufactu ring  establishments.  These  will  be  under  the  control 
of  individuals.  The  company  may  either  build  or  lease.  They 
may  build  for  themselves,  pr  lease  to  whom  they  please.  And 
they  are  under  no  obligation  to  let  the  public  participate  in  the 
immediate  profits  of  their  undertaking.  If  to  establish  this  as  a 
public  benefit,  it  be  indispensably  necessary  that  the  public 
should  have  the  privilege  of  participating  in  it  directly  and  im- 
mediately, Ihen  the  proposition  is  not  made  out,  and  the  defen- 
dants have  no  authority.  But  is  not  this  view  too  narrow?  Can 
public  improvements  be  limited  within  such  a  compass?  May 
we  not,  in  considering  what  shall  be  deemed  a  public  use  and 
benefit,  look  at  the  objects,  the  purposes,  and  the  results  of  the 
undertaking?  The  water  power  about  to  be  created,  will  be 
sufficient  fur  the  erection  of  seventy  mills,  and  factories,  and 
other  works  dependent  on  such  power.  It  will  be  located  at  the 
seat  of  government,  at  the  head  of  tide  water,  and  in  a  flourish- 
ing and  populous  district  of  country.  It  will  be  no  experiment 
in  a  country  like  ours;  and,  judging  from  the  results  in  other 
places,  we  may  make  a  sufficiently  accurate  calculation  as  to  the 
result  here.  Take  the  town  of  Paterson  as  an  example.  The 
water  power  there  is  in  the  hands  of  individuals — a  company 
like  this.  They  are  under  no  obligation  to  lease  or  sell  any 
mills  or  privileges  to  the  public;  and  yet  see  the  result  of  a  few- 
years'  operation.  Paterson  is  now  the  manufacturing  emporium 


JULY  TERM,  1832.  729 

Scudder  v.  Trenton  Delaware  Falls  Co. 

of  the  state,  with  a  population  of  eight  thousand  souls.  It  haa 
increased  the  value  of  property  in  all  that  district  of  country; 
opened  a  market  for  the  produce  of  the  soil,  and  given  a  stimu- 
lus to  industry  of  every  kind.  May  we  not  hope  that  a  similar 
benefit  may  be  experienced  here?  Compare  this  with  some 
other  improvements  in  the  state,  which,  on  the  principles  con- 
tended for,  are  called  improvements  for  public  purposes,  and  for 
the  erection  of  which  a  large  amount  of  private  property  has  been 
taken.  Take,  for  example,  one  of  the  oldest  and  longest  turn- 
pike roads  in  the  state — the  one  from  New-Brunswick  to  Easton. 
What  public  benefit  has  resulted  from  that  road,  compared  with 
the  result  of  the  water  power  on  the  Passaic?  And  yet,  the  road 
is  declared  constitutional,  because  the  community  may  use  it  by 
paying  toll. 

I  incline  to  think  the  principle  sought  to  be  established  by  the 
defendants'  counsel,  is  too  limited ;  but  I  do  not  know  that  this 
court  can  establish  a  general  rule  that  shall  hold  good  in  all 
cases,  and  be  a  permanent  bar  to  legislative  encroachment. 
The  ever  varying  condition  of  society  is  constantly  presenting 
new  objects  of  public  importance  and  utility;  and  what  shall  be 
considered  a  public  use  or  benefit,  may  depend  somewhat  on  the 
situation  and  wants  of  the  community  for  the  time  being.  The 
great  principle  remains.  There  must  be  a  public  use  or  benefit; 
that  is  indisputable:  but  what  that  shall  "consist  of,  or  how  exten- 
sive it  shall  be  to  authorize  an  appropriation  of  private  property, 
is  not  easily  reducible  to  general  rule. 

Looking  at  this  case  in  all  its  bearings,  and  believing  as  I  do 
f.hat  great  benefit  will  result  to  the  community  from  the  contem- 
plated improvement,  I  am  not  satisfied  to  declare  the  act  of  in- 
corporation, or  that  part  of  it  which  is  now  in  question,  void  and 
unconstitutional.  I  do  not  see  in  it  such  a  decided  and  palpable 
violation  of  constitutional  right  as  will  warrant  me  to  put  an  end 
to  this  work,  by  the  strong  arm  of  the  court.  The  legislature 
have  thought  proper,  in  their  wisdom,  to  exercise  the  right  of 
eminent  domain,  for  an  object  which  they  deem  of  public  use  and 
importance;  and  although  their  judgment  is  not  conclusive  as  to 
the  right,  it  is  certainly  entitled  to  a  most  respectful  consideration. 
They  have  authorized  a  company  to  do  what  the  state  itself 


730  CASES  IN  CHANCERY. 

Bciidder  v.  Trenton  Delaware  Falls  Co. 

might  have  done  without  having  their  right  questioned.  They 
have  in  this  pursued  the  ordinary  mode.  All  great  improvements 
in  our  slate,  are  made  through  private  incorporated  companies, 
and  perhaps  better  accomplished  in  that  way  than  any  other. 
The  mere  mode  of  making  them,  forms  no  objection  in  itself  to 
their  constitutionality  :  courts  will  look  at  the  object,  and  judge 
from  that. 

In  passing  upon  this  question,  I  cannot  forget  that  I  am  sitting 
in  equity,  where  questions  of  strict  law  are  not  ordinarily  tried; 
and  that  the  court  is  called  on  to  exercise  a  most  high  and  delicate 
power,  one  never  to  be  exercised  except  in  clear  and  unequivocal 
cases.  This  does  not  present  itself  to  me  as  such  case  ;  and  al- 
though in  the  investigation  of  it,  I  have  entertained  serious  doubts 
on  the  last  point,  yet  I  am  clearly  of  opinion  that  the  injunction 
ought  not  to  issue. 

The  injunction  is  refused. 

CITED  in  Amer.  Print  Works  v.  Lawrence,  1  Zab~.  259 :  Hardenburyh  v.  Far.  & 
M.  Kk  of  New  Brunswick,  ,2  Gr.  Ch.  74 ;  Soc.  for  Estab.  Usef.  Manufae.  v. 
Butler,  1  Seas.  50G ;  D.  &  R.  Can.  &  C.  &  A.  R.  &  Tr.  Co.  v.  R.  &  D.  B.  R. 
Co.,  1  C.  E.  Or.  378;  Cosier  v.  Tide  Water  Co.,  3  C.  E.  Gr.  64;  Carlisle  v. 
Cooper,  6  C.  E.  Gr.  579-584. 


INDEX. 


A. 

ACCOUNT. 

Vide  EXECUTORS   AND   ADMINISTRA- 
TOR*. 
PLEADING,  IV.  21,  22. 

ACTION  AT  LAW. 
Vide  ISSUE. 

ADMINISTRATOR. 

Vide  EXECUTORS   AND   ADMINISTRA- 
TORS. 

ADULTERY. 
Vide  DIVORCE. 

ADVANCEMENT. 

1  The   testator  was   accustomed,   upon 
the  marriage  of  his  daughters,  to  ad- 
vance to  their  husbands  one  hundred 
and  fifty  dollars  each,  and  take  from 
them  an  obligation  for  the  payment 
of  the  same,  without  interest ;  with  an 
understanding,  that  it  was  to  be  col- 
lected for  the  benefit  of  the  children 
of  his  said  daughters  in  ca«e  their  hus- 
bands survived  them  ;  but  if  the  wife 
survived   the  husband,  payment  was 
not  to  be  required  of  his  represeota- 
tives,  and  the   obligation  was  to  be 

.  considered  as  cancelled: — This  was 
strictly  an  advancement;  a  gift  to  be 
accounted  for,  as  part  of  the  share  of 
the  daughter,  to  preserve  equality  in 
the  distribution  of  the  testator's  estate. 
Wanmaker's  Ksrs  v.  Van  Buskirk,  C85 

2  This  cannot  be  considered  a  debt,  the 
money    not   being   wanted   to   satisfy 
claims   against   the  estate ;    but    the 
daughter   having   survived   her   hus- 
band, and  the  testator  having  devisedi 


all  his  personal  property  amongst  his 
children,  equally;  to  preserve  such 
equality,  this  advancement  must  be 
brought  in  by  the  executor  as  consti- 
tuting part  of  the  estate.  lb\ 

3.  But  though  a  bond  taken  for  this  ad- 
vancement, and  including  a  farther 
sum  paid  by  the  testator  for  his  son- 
in-law,  be  secured  by  a  mortgage  on 
his  real  estate,  which  descended  to  his 
children ;  it  is  not  necessary  that  the 
money  should  be  collected  on  the 
mortgage,  merely  to  be  paid  over  to 
the  widow :  the  executor  may  consider 
it  as  part  of  her  share  of  her  father's 
estate.  Semble,  That  an  advancement 
bears  no  interest.  Ib, 

Vide  EXECUTORS   AND   ADMINISTRA- 
TORS, 10. 


AFFIDAVIT. 

Vide  EVIDENCE,  4,  5,  13. 

IDIOTS  AND  LUNATICS,  5. 


AGREEMENT. 

1.  It  is  a  well  settled  principle  that  this 
court  has  no  power  to  compel  a  party 
to    appoint    an    arbitrator ;    and,   of 
course,  that  a  specific  performance  of 
an  agreement  depending  on  such  ap- 
pointment, cannot  be  decreed.     Cop- 
per v.  WeUt,  10 

2.  In  cases  where'  the  specific  perform- 
ance of  an  agreement  has  become  im- 
possible, or  from  the  nature  of  the 
contract  cannot  be  decreed,  the  party 
aggrieved  is  entitled  to  compensation 
in  damages  for  the  non-performance 
of  the  agreement.  Ib. 

3.  A  person  cannot  be  permitted  to  dis- 
avow  or  avoid  the  operation   of  an 
agreement  entered  into  with   a   full 
knowledge  of  the  facts,  on  the  ground 
of  his  ignorance  of  the  legal  conse- 


731 


732 


INDEX. 


quences    flowing    from     those    facts. 
Hinchrnan  v.  Einanit  Adm'r,  100 

4.  In  decreeing  specific  performance  of 
agreements,  the  court  is  bound  to  see 
that  it  really  does  that  complete  jus- 
tice which  it  aims  at,  and  which  is  the 
ground   of  its  jurisdiction.    King  v. 
Morford,  274 

5.  If  the  claim  for  a  deed  is  not  just  and 
reasonable;    if   the   party   has   been 
grossly  negligent  of  his  rights,  or  has 
abandoned    his  contract,  equity  will 
not  afford  him  relief.  Jb. 

C.  Delay,  amounting  to  apparent  negli- 
gence, may  be  explained  ;  and  under 
special  circumstances,  as  where  there 
is  a  difficulty  about  the  title,  it  pre- 
sents no  bar  to  relief  in  this  court.  Ib. 

7.  Whether  the  specific  performance  of 
a  contract  shall  be   ordered   by  this 
court,  is  always  a  matter   resting  in 
sound  discretion.  J.b. 

8.  The  strict  rule  is,  that  the  party  com- 
ing into  equity  for  a  specific  perform- 
ance, must  come  with  perfect  propriety 
of  conduct,  otherwise  he  will  be  left 
to  his  remedy  at  law.  Jb. 

9.  A  written  contract  for  the  sale  of  real 
estate  may  be  waived  by  parol.       Ib. 

10.  On  a  bill  by  the  vendor,  for  specific 
performance  of  a  contract  for  the  sale 
of  land  at  auction ;  where  it  appears 
that  the  vendee  was  induced  to  make 
the  purchase  by  the  fraudulent  con- 
trivance and  management  of  the  ven- 
dor, he  can  have  no  remedy  to  enforce 
the  contract  in  a  court  of  equity :  but 
where  the  charge  oV  fraud  or  collusion 
is  not  established    against   the   com- 
plainant, the  relief  he  seeks  cannot  be 
rightfully  withheld,  on   that  ground. 
Hodman  v.  Ziiley,  320 

11.  So  the  vendee  being  intoxicated  at 
the  time,  and  not  in   a   situation  to 
judge  correctly,  or  act  with  prudence, 
will  not  avail  him  to  avoid  the  con- 
tract, unless  he  can  show  that  it  was 
procured  by  the   contrivance   of  the 
vendor,  or  that  an  unfair  or  improper 
advantage  was  taken  of  his  situation. 

16. 


12.  Courts  of  equity  seldom  interfere  to 
set   aside   contracts   oi;   sale,   on   the 
ground  of  inadequacy  of  price ;  they 
leave  the  parties  to  their  legal  reme- 
dies.    But  when  called  on  to  enforce 
a  contract,  they  examine  into  the  con- 
sideration to  be  given,  its  fairness  and 
equality,   and   all   the   circumstances 
connected  with  it;   and  if  any  thing 
manifestly  inequitable  appear  in  that 
part  of  thetransaction^  they  will  never 
lend  their  power  to  carry  the  contract 
into  execution.  Ib. 

13.  There  can  be  no  objection  to  a  con- 
tract made  with  a  man  in  the  habit  of 
buying  and  selling,  and  transacting 
his    own    business,   because    he   was 
illiterate,  unless  he  has  been  grossly 
deceived  or  fraudulently  imposed  on. 

Ib. 

14.  The  rule  of  the  court  is  that  time  may 
be  dispensed  with,  if  not  of  the  essence 
of  the   contract.      In    this  case,   the 
time  of  the  delivery  of  the  deed  was 
not  held  to  be  of  the  essence  of  the 
contract.  Ib, 

15.  A  party   may  -waive  his   technical 
right  in  this  respect,  and  the  waiver 
need  not  be  direct,  or  in  writing,  but 
may  be  inferred  from  circumstances. 

Ib. 

16.  A  prior  incumbrance  existing  on  the 
property,  and  known  to  the  purchaser, 
is  not  a  bar  to  a  specific  performance; 
but  it  may  be  referred  to  a  master  to 
inquire  as  to  the  amount  of  the  incum- 
brance and  state  of  the  title,  that  the 
court  may  judge  and  lake  such  order 
as  may  be  expedient.  Ib. 

17.  A  waiver  of  a  contract  for  the  sale 
of  real  estate  may  be  by  parol,  but  it 
should    be   express,   and    of   such   a 
character  as  to  leave  no   reasonable 
doubt    as  to    the    intentions  of   the 
parties.  Ib. 

18.  Under  conditions  of  a  vendue  "for 
the  sale  of  the  property  of  S.  K."  it  is 
no  objection  to  the  execution  of  the 
contract,  that  a  part  instead   of  the 
whole  of  a  lot  of  land  was  sold  ;  pro- 
vided it  was  made  known  what  part 
was  to  ue  sold  at  the  time  it  was  Bet 
up.  Ib. 


INDEX. 


733 


Vide  EXECUTORS  AND  ADMINISTRA- 
TORS, 10,  11. 

EVIDENCE,  3,  9,  10,  11,  14,  15. 

VENDOR  AND  PURCHASER,  9, 13, 
14. 


ALIMONY. 

Vide  DIVORCE. 

AMENDMENT. 
Vide  PRACTICE,  I. 

ANSWER. 
Vide  PLEADING,  III. 

APPRAISEMENT. 
Vide  AAVARD. 

ARBITRATOR. 
Vide  JURISDICTION,  1. 

ASSETS. 

Vide  DEBTOR  AND  CREDITOR,  3. 

EXECUTORS    AND     ADMINISTRA- 
TORS, 9. 

ASSIGNMENT  AND  ASSIGNEE. 

Vide  DEBTOR  AND  CREDITOR,  5. 
MORTGAGE,  II. 

ATTACHMENT. 

Vide  SHERIFF,  4. 

AWARD. 

1.  If  the  appraiser  chosen  by  one  party, 
without  the  concurrence  of  the  other, 
made  an  appraisement,  it  is  an  ex  parte 
proceeding,  irregular  and  void.     Cop- 
per v.  Welis,  10 

2.  The  sum  assessed  by  the  appraisers 
(as  the  value  of  lands  and  damages) 
can  be  no  compensation  for  lands  not 
described  in  the  survey  by  which  the 


appraisement  was  made.    Southard  r. 
The  Morris  Canal,  518 

3.  Whether  upon  notice  given  to  the 
widow  in  possession,  a  sum  of  money 
assessed  to  her,  without  noticing  the 
infant  heirs,  is  intended  for  the  dam- 
age to  her  dower  right,  or  as  full  com- 
pensation for  all  the  injury  done  to 
the  property,  query.  Ib 


B. 

BANKS. 
Vide  CORPORATIONS,  18, 19. 

BARON  AND  FEME. 
Vide  HUSBAND  AND  WIFE. 

BILL. 
Vide  PLEADING,  II. 

BILL  OF    REVIVOR    AND   SUP- 
PLEMENTAL BILL. 

Vide  PLEADING,  II.  9. 

BILX  OF  EXCHANGE. 

1.  A  draft,  payable  out  of  a  particular 
fund,  at  an  indefinite  period  of  time, 
and  on  a  contingency,  is  not  a  bill  of 
exchange,  subject  to  the  rules  govern- 
ing commercial  paper;   and  a  general 
acceptance  does  not  alter,  but  follows 
the  nature  of  the  draft.     On  receiving 
such  a  draft,  and  giving  a  receipt  for 
it,  promi-ing  "  to  credit  it  when  paid," 
the  receiver  .cannot    be    obliged    to 
credit  it  until  paid,  nor  be  held  ac- 
countable for  not  using  clue  diligence 
to  collect  it :  the  original  debt  remains 
until   the   money  is   paid.    /Smith  v. 
Woo-d,  74 

2.  The  holder  of  a  promissory  note  is 
entitled  to  the  benefit  of  a  collateral 
security  given  by  the  principal  debtor 
to  his  surety.    SkUlmcat  v.  Teeple,  232 

Vide  EVIDENCE,  1,  2. 
MORTGAGE,  20-22. 


734 


INDEX. 


BOND. 

1.  Where  a  sheriff,  colore  officii,  takes  a 
bond  for  the  performance  of  matters 
not  authorized  by  the  statute,  the  bond 
is  void.    Smith  v.  Allen,  43 

2.  But  if  there  be  a  mere  verbal  differ- 
ence or  departure  from  the  provision 
of  the  statute,  which  imposes  no  new 
duty   on   the    obligor,   or  no    duties 
diverse  from   those  required   by  the 
statute    as    justly    and    legally    ex- 
pounded, the  bond  will  be  good.     Ib. 

3.  If,  under  the  act  of  1799,  (Rev.  Laws, 
426,)  which  directs  the  courts  of  com- 
mon pleas  to  mark  and  lay  out  the 
bounds  and  rules  of  the   prisons  in 
their  several  counties,  and  provides, 
''that  every  prisoner  in  any  civil  ac- 
tion, giving  bond  to  the  sheriff  with 
sufficient  securities  that  he  will  keep 
within   the    said    bounds,   shall    have 
liberty   to  walk  therein  ;    and  if  he 
walk   out  of  said    bounds   the   bond 
shall  be  forfeited,"  the  sheriff  take  a 
bond  with  condition  "  that  the  prison- 
er shall  keep  within  the  bounds  of 
the  prison  limited  and  prescribed  by 
the  judges  of  the  court  of  common 
pleas  of  the  county  of  E — ,  and  not 
walk  out  or  depart  the  same  until  he  be 
discharged  by  due  course  of  law,"  it  is 
within  the  rule,  and  a  good  bond.    76. 

4.  Such  a  bond  is  not  a  bond  of  indem- 
nity,  strictly   speaking.     It   does  not 
lie  in  the  mouth  of  the  obligors  to 
say    the    sheriff    is    not    damnified. 
There  is  no  necessity  of  showing  an 
actual   damnification.      The   bond  is 
actually   forfeited    by   the   defendant 
going  off  the  limits,  and  the  cause  of 
action   is  made  out   by  proving   the 
bond  and  the  escape.  76. 

Vide  JURISDICTION,  3, 11. 


BRIDGES. 
Vide  CHOSEN  FREEHOLDERS. 


CAMDEN     AND    AMBOY    KAIL- 
ROAD  COMPANY. 

Vide  CORPORATIONS. 
SURVEY. 


CANCELLATION. 
Vide  MORTGAGE,  II. 


CERTIORARI. 

The  principle  is  universal,  that  where 
the  rights  of  an  individual  are  in- 
vaded by  the  acts  of  persons  clothed 
with  authority,  and  who  exercise  that 
authority  illegally,  the  persons  ag- 
grieved must  seek  redress  by  cer- 
tiorari.  Tucker  v.  The  Board  of 
Chosen  Freeholders  of  Burlington,  282 


CHOSEN  FREEHOLDERS. 

l.The  act  of  13th  November,  1823, 
which  provides  "  that  it  shall  and 
may  be  lawful  for  the  board  of  cho- 
sen freeholders  in  and  for  the  county 
of  Burlington,  at  their  discretion,  to 
build  and  maintain  a  good  and  suffi- 
cient bridge  over  Bass  river,"  at  a 
particular  place,  vested  in  the  corpo- 
ration the  right  to  build  the  bridge 
at  the  place  specified,  whenever,  in 
the  judgment  and  sound  discretion  of 
the  freeholders,  the  right  might  be 
advantageously  exercised.  Tucker  v. 
Chosen  Freeholders  of  Burlington,  287 

2.  The  authority  was  not  temporary,  but 
a  continuing  power;  it  did  not  cease, 
although  it  was  not  exercised  by  the 
then  existing  board  of  freeholders,  or 
although   the    board   in    1826   might 
have  decided  that  it  was  inexpedient 
to  build  the  bridge.  Ib. 

3.  This   act  clothed  the  board  of   free- 
holders with  the  pame  power  to  erect 
a  bridge  over  the  river  at  the  place 
designated,  that  they  have  of  common 
right,   to    build   bridges   over    other 
streams  in  the  county,  not  navigable. 

76. 

4.  Semble.  That  the  board  of  freeholders 
have   no  authority  to  erect  a  bridge 
over  a  navigable  stream,  without  an 
act  of   the  legislature   expressly  for 
that   purpose.     The  authority  vested 
by  such  an  act,  is  independent  of  the 
general  law  respecting  bridges ;    and 
it  is  not  necessary  that  the  overseer 
of  the  highways  should  give  notice  to 
the  director  of  the  board  of  freehold- 
ers, of  the  necessity  of  a  bridge  at 
the  place  specified.  Ib. 


INDEX. 


735 


6.  The  board  of  freeholders  having  juris 
diction  over  the  subject  matter,  this 
court  cannot  interfere  upon  the  groundj 
that  their  conduct  has  been  arbitrary,! 
or  that  the  complainants  have  been!' 
denied  a  fair  hearing.     The  right  of 
supervision  and  correction  is  in  the 
supreme  court :  it  appertains  to  their 
general  supervising  jurisdiction.    Ib. 

6.  The  surveyors  of  the  highways  and 
chosen  freeholders  are  vested  with  a 
general  authority,  by  statute,  to  lay 
out  and  cause  to  be  opened  public 
highways;  but  this  general  power 
must  be  construed  reasonably.  "A 
navigable  river  is  of  common  right 
a  public  highway ;  and  a  general 
authority  to  lay  out  a  new  highway, 
must  not  be  so  extended  as  to  give  a 
power  to  obstruct  an  open  highway 
already  in  the  use  of  the  public." 
Hence  it  has  always  been  considered 
necessary,  when  a  bridge  was  required 
over  a  navigable  stream,  to  procure  a 
special  act  of  the  legislature:  their 
right  to  grant  such  power  is  beyond 
dispute.  Attorney- General  v.  Stevens, 

369 


COLLATERAL  SECURITY. 

Vide  BILLS  OF  EXCHANGE,  2. 
TRUST  AND  TRUSTEE,  1. 


COMMON  SEAL. 

Vide  CORPORATION,  14. 
EVIDENCE,  19,  20. 


CONCEALMENT. 
Vide  FRAUD,  11.. 

CONSOLIDATION  OF  SUITS. 
Vide  PRACTICE,  III. 


CONSTITUTION,  CONSTRUCTION 
OF. 

The  constitution  provides  "that  the 
common  law  of  England,  as  well  as 
so  much  of  the  statute  law  as  have 
heretofore  been  practiced  in  this  state, 
ehall  remain  in  force  until  altered  by 


the  legislature,  &c.,  and  that  the 
inestimable  right  of  trial  by  jury, 
shall  remain  confirmed  as  a  part  of 
the  law  of  this  state  without  repeal 
forever."  These  words  of  the  con- 
stitution are  fully  satisfied,  by  pre- 
serving the  trial  by  jury  in  all  crimi- 
nal cases,  and  all  trials  of  right  in 
suits  at  common  law.  Scudder  v. 
Trenton  Delaware  Falls  Co.,  69 


CONTRACT. 

Vide  AGREEMENT. 

CONVEYANCE. 
Vide  DEED. 

CORPORATION 

1.  The  court   of  chancery   is   not   the 
proper   tribunal   for  calling  in  ques- 
tion the   rights   of  a  corporation,  as 
such,    for   the   purpose   of  declaring 
its  franchises  forfeited  and  lost.     The 
Society  for  Establishing   Useful  Manu- 
factures   v.    The   Morris    Canal    and 
Banking  Co.,  157 

2.  The  "Society  for  Establishing  Useful 
Manufactures,"  owning  the  lands  on 
both    sides   of  the    Passaic   river  at 
Patersori^  the  seat  of  the  manufacto- 
ries,   where   the   tide   does   not   ebb 
and  flow  and  the  stream  is  not  navi- 
gable,  as   the    riparian    proprietors, 
are  entitled  to  the  use  of  the  stream. 
They  have  it  in  a  property,  growing 
out  of  the  ownership  of  the  soil,  as 
sacredly  regarded  by  the  law  as  the 
right   of  soil    itself;    and  a  right  to 
enjoy  it  without  diminution  or  altera- 
tion. Ib. 

3.  The  right  is  not  confined  to  the  use  of 
so  much  water  as  may  be  necessary 
for    their    present    purposes.      They 
have  appropriated  to  themselves  the 
use  of  the  stream,  and  have  a  right  to 
take  out  the  whole  of  it  for  the  pur- 
poses of  their  manufactories ;  provided 
it  is,  after  being  used,  again  restored 
to  the  bed  of  the  river  fwr  the  benefit 
of  those  below ;    and  provided,  also, 
that  no  one  having  prior  rights   is 
thereby  injured.  Ib. 


73G 


'    INDEX. 


4.  The  Morris  Canal  company,  by  using 
the  bed  of  the  Kockaway  (si  branch  ot 
the  Passaic)  as  part  of  their  canal,  in- 
troducing into  it  the  waters  brought 
from  lake  Hopalcong  and  other 
sources,  mingling  them  with  the  water: 
of  the  Kockaway;  and  on.  leaving  it, 
taking  out  water  to  supply  their  canal 
which  is  not  again  returned  into  the 
stream  before  it  passes  Paterson ;  do 
not  injure  the  rights  of  the  .Society  for 
Establi>hing  Useful  Manufactures  at 
Paterson,  provided  they  take  out  no 
more  water  than  they  bring  in,  and 
the  flow  of  water  at  Paterson  is  not 
thereby  diminished.  Ib. 

6.  The  rights  of  the  Canal  company  are 
subject  to  the  prior  rights  of  the 
Society,  and  must  be  exercised  in  sucl 
manner  as  that  the  Society  thereby 
sustains  no  injury.  Ib 

6.  Semble.  That  the  legislature  have  no 
power,  by  a  subsequent  act,  to  author- 
ize the  taking  by  a  corporation,   o' 
streams  of  water   or  other  property 
previously  appropriated  by  charter  to 
the  use  of  smother  corporation,  anc 
essential  to  the   object  of  the  prior 
grant.  Ib 

7.  Where  a  corporation   has  been  duh 
organized,    sind    .thereby    acquired    n 
legal  existence,  a  court. of  equity  wil" 
not,  upon  an  alleged  nonuser  or  misuse) 
of  its  corporate  privileges,  declare  the 
charter  to  be  forfeited  :  such  a  power 
is  of  right  to  be  exercised  by  a  court 
of  law  and  not  a  court  of  chancery. 
Attorney-General,  v.  Stevens,  3tJ9 

8.  "Where  a  set  of  men  claiming  to  be  a 
legally  incorporated   company  under 
an  act  of  the  legislature,  have  done 
every   tiling    necessary   to   constitute 
them  a  corporation,  colorably  at  least, 
if  not  legally,  and  are  exercising  all 
the  powers  and  functions  of  a  corpora- 

1  tion  ;  tliey  are  a  corporation,  de  facto, 
if  not  dcjure;  and  this  court  will  not 
interfere,  in  an  incidental  way,  to  de- 
clare all  their  proceedings  void,  and 
treat  them  as  a  body  having  no  rights 
or  powers.  Ib. 

9  The  commissioners  appointed  to  re- 
ceive subscriptions  for  the  stock  of  an 
incorporation,  are  trustees ;  and  an 
such  this  court,  if  a  proper  case  was 
made,  might  control  their  acts:  but, 
to  authorize  it,  there  should  be  some 


complaint  on  the  part  of  the  stock- 
holders, or  persons  subscribing  or 
peeking  to  subscribe  for  st<>ck;  and 
the  proceeding  should  be  by  bill,  and 
not  by  information.  Ib. 

10.  There  is  not,  in  the  charter  of  the 
Camden   and   Amboy   Railroad    and 
Transportation  company,  any  specific 
grant  of   power  for    this   particular 
bridge,  (over  South  river.)     But  there 
is  a  special  authority  to  erect  bridges 
and  all  other  works  necessary  for  the 
completion    of    this   particular   road. 
The  conclusion  is,  that  the  power  to 
construct  bridges  over  all  the  streams 
on  the  route,  so  as  best  to  carry  into 
effect  the  object  of  the  incorporation, 
is  given  in  the  act,  if  not  in  express 
terms,  yet  by  necessary  implication; 
and  the  grant  thus  made  is  constitu- 
tional. Ib. 

11.  The  power    must,   nevertheless,   be 
exercised   discreetly,  and   with  a  due 
regard  to  the  privileges  of  others.     If 
any  injurious  and  wanton  exercise  of 
it  be  shown  to  this  court,  it  will  in- 
terfere "and    regulate   it    oh    proper 
principles.     To  warrant  such  interfer- 
ence, the  exercise  of  the  power  must 
be  shown  to  be,  not  only  injurious,  but 
wilfully  or  wantonly  so:  a  mere  mis- 
take in  judgment  will  not  be  sufficient. 

Ib. 

12.  The  Morris  Canal  and  Banking  com- 
pany, in  erecting  the  dam  to  raise  the 
waters  in  lake  Hopatcong,  have  not 
exceeded  their  chartered  powers,  or 
used    them    unnecessarily ;    it   being 
notorious,  that  without  the  waters  of 
lake  Hopatcong  tlieir  canal  would  be 
worthless.     Southard  v.  Morris  Canal, 

518 

3.  The   powers   of  a  corporation   are, 
strictly  speaking,  two-fold  ;  those  that 
are  derived  from  express  grant,  and 
those  that  are  incident  and  necessarily 
appertain  to  it,  whether  expressed  in 
the  grant  or  not.     Leggett  v.  New  Jer- 
sey Manufacturing  and  Banking   Co., 

541 

4.  The  power  to  make  by-laws,  to  make 
and  use  a  common  seal,  and  the  right 
to  sue,  are  incident  to  every  corpora- 
tion. Ib. 

5.  In  modern  times,  it  has  been  usual 
to  embrace  all  these  incidental  powers 


INDEX. 


737 


in  the  act  of  incorporation,  so  that  it 
may  now  be  considered  a  general  rule, 
that  the  powers  of  a  corporation  are 
regulated  and  defined  by  the  act  which 
gives  it  existence.  Ib. 

16  A  corporation  is  strictly  limited  to 
the  exerci.se  of  the  powers  specifically 
conferred  upon  it ;  and  the  exercise 
of  the  corporate  franchise  cannot  be 
extended  beyond  the  letter  and  spirit 
of  the  act  of  incorporation.  Ib, 

17.  Corporations,   like  natural   persons, 
are  bound  only  by  the  acts  and  con- 
tracts of  their  agents,  done  and  made 
within  the  scope  of  their  authority. 

Ib. 

18.  The  president  and  cashier  of  a  bank, 
as  such,  have  no  power  to  execute,  in 
the  name  and  behalf  of  the  corpora- 
tion,  a   mortgage  or  conveyance  of' 
real  estate.  76. 

• 

19.  What  are  the  appropriate  duties  and 
powers  of  the  president  and  cashier^ 
of  a  bank.  Ib, 

20.  Corporations  in  their  contracts  stand 
upon  the  same  footing  with  natural! 
persons,  are  open  to  the  same  impli- 
cations and  receive  the  benefit  of  the 
same  presumptions.  Ib. 

Vide  EVIDENCE,  19,  20. 
JURISDICTION,  18,  27. 
LEGISLATURE,  5. 


COSTS. 
Vide  PRACTICE,  II. 

.       CREDITOR. 
Vide  DEBTOR  AND  CREDITOR. 

CUSTOM. 

Vide  LANDLORD  AND  TENANT,  2. 
EVIDENCE,  11. 

I 

D.       * 

DAMAGES. 

1.  In  cases  where   a   specific   perform- 
ance of   the   agreement   has   become 

3 


impossible,  or  from  the  nature  of  the 
contract  cannot  be  decreed,  the  party 
aggrieved  is  entitled  to  compensation 
in  damages  for  the  non-performance 
of  the  agreement.  Copper  v.  Wells, 

10 

2.  There  is  a  distinction  between  dam- 
ages arising   from   the   non-perform- 
ance  of  a   contract,  which    damages 
may  be  partly  imaginary,  and  partly 
the  result  of  actual  or  supposed   loss 
or  inconvenience ;   and   the  damages 
to  which   a   party. is  justly    entitled 
for  repairs  or  beneficial   and  lasting 
improvements,  under  the  faith  of  an 
engagement  which  is  afterwards  dis- 
covered to  be  defective,  or  impossible 
to  be  executed  by  default  of  the  oppo- 
site party.     In  the  first  case,  the  dam- 
ages  can   be   properly  assessed  only 
by  a  jury  upon  an  issue  of  quantum 
damnificalus ;  in  the  last,  the  compen- 
sation may  be  safely  ascertained  by 
an  inquiry   before  a  master  or  com- 
niispioner,  or  at  the  discretion  of  the 
court  an  issue  may  be  awarded.     Ib. 

3.  In  cases  of  the  latter  description  the 
jurisdiction  of  this  court  is  complete: 
the   party  has   a   clear   equity  to  be 
restored    to   the  money  paid  for  im- 
provements,    which      are      rendered 
valueless    to    him,    but   are    greatly 
beneficial  to  the  owner  of  the  land. 

Ib. 


DEBTOR  AND  CREDITOR. 

1.  Where  the  property  of  a  debtor  has 
been  sold  at  sheriff's  sale,  and  bought 
in  by  his  friends  for  a  nominal  con- 
sideration, and  upon  a  bill  filed   in 
this  court  the  purchase  has  been  de- 
creed to  be  MI  trust  for  the  benefit  of 
creditors,  and  the  properly  is  ordered 
to   be    re-sold,    the  creditors    having 
specific  liens  on  the  property  at  the 
time  of  the  first  sale,  are  to  be  paid 
first,   according    to    their    respective 
priorities.     The  State  Bank  at  Eliza- 
beth v.  Marsh,  288 

2.  The  judgment  creditor  under  whose 
execution  the  first  sale  was  made,  is 
not  to  be  excluded,  or  limited  to  the 
sum  produced  by  that  sale.      If  the 
proceeds  of  the  second  sale  will  reach 
that  judgment,  in  its  order,  the  bal- 
ance should  be  paid ;  or  if  the  pur- 
chasers at  the   first   sale  have  since 


733 


INDEX. 


paid  off  the  judgment,  they  are  enti-| 
tied  to  be  reimbursed.  Ib.\ 

I 

3.  It  makes  no  difference,  that  the  prop-! 
erty   is  under   the   direction    of  this 
court,  as  equitable  assets  :  for  in  re-! 
gard  to  them,  where  the  law  gives  a 
priority,  equity  will   not  disturb   it.1 

Ib. 

4.  Executions  out  of  justices'  courts,  are 
liens    upon    the    personal     property. 
only;     and    where    the    trust    funds, 
arising  from  the   personal    property,! 
are   exhausted    by  prior   executions,! 
they   must   be   placed    on    the   same 
footing  witli  the  general  creditors.  Ib. 

5.  The  assignee  of  an  insolvent  debtor, 
on  general  principles,  is  bound  to  pay 
all  debts  due  and  owing  by  the  insol- 
vent, up  to  the  time  of  his  making 
application  for  a  discharge  under  tliei 
insolvent  acts.     Prichett  v.  Newbold's 

57  1  ! 


Vide  HEIRS  AND  DEVISEES,  2-4. 
JUDGMENT  AT  LAW,  7,  8. 


DEED. 

l.The  execution  and  acknowledgment 
of  a  deed  of  conveyance  is  not  suffi- 
cient ;  it  must  be  delivered  to  the 
purchaser,  actually  or  in  contempla- 
tion of  law,  to  pase  the  title.  Craw- 
ford v.  Bertholf,  458 

2.  It  is  not  necessary  that  there  should 
be   an    actual   handing  over    of   the! 
instrument,  to  constitute  a  delivery  ;i 
a  deed   may  be   delivered   by  words 
without  rets,  by  acts  without  words, 
or  by  both  wcrds  and  acts.  Ib. 

3.  A  deed  may  be  effectual  to  pass  real 
estate,  though  it  be  left  in  the  custody | 
of  the   grantor.     If  both   parties   be| 
present,   and   the  contract   is    to  all 
appearances     consummated,    without 
any  condition  or  qualification  annex- 
ed, it  is  a  complete  and  valid  deed, 
notwithstanding  it  be  left  in  the  cus-j 
tody  of  the  grantor.  Ib.\ 

4.  It  is  necessary,  however,  that  there 
should    be    so'me    act    evincing    the 
intent;  it  must,  satisfactorily  appear, 
if  not  from  acts  or  express  words,  yet 
from  circumstances  at  least,  that  there 


was  an   intention   to   part  with    the 
deed,  and  of  course  to  pass  the  title. 

16. 

,  Where  the  evidence  opposes  the  idea 
that  there  was  a  delivery,  and  proves, 
that  although  there  might  have  been 
an  intention  to  deliver,  founded  on 
the  presumption  that  the  contract  was 
about  to  be  consummated ;  yet  that 
such  intention  was  abandoned,  and  it 
was  distinctly  stated  that  the  deed 
could  not  or  would  not  be  delivered 
at  that  time ;  it  cannot  be  considered 
a  delivery.  Ib. 

Vide  AGREEMENT,  5. 
FRAUD,  2,  7,  8. 
VENDOK  AND  PURCHASER,  14. 


DEMRURER. 
Vide  PLEADING,  V. 

•     DEVISE. 

Vide  WILT, 

DOWER,  4-8. 

DEVISEES. 
Vide  HEIRS  AND  DEVISEES. 


Where  a  party  is  not  entitled  to  relief, 
he  is  not  entitled  to  discovery.  Miller 
v.  Ford,  358 

Vide  INJUNCTION,  2. 
JURISDICTION,  11. 
PLEADING,  26. 


DIVORCE. 

1.  A  divorce  a  mensa  et  thoro,  presup- 
poses an  existing  valid  marriage  be- 
tween the  parties.  It  is  founded  on 
some  fact,  subsequent  to  the  marriage, 
and  does  not  dissolve  the  relation.  It 
consists  with  a  subsequent  reconcilia- 
tion of  the  parties,  as  well  as  subse- 
quent cohabitation  on  proper  terms. 
Zule  v.  Zule,  96 


INDEX 


739 


2.  A  decree  for  a  divorce,  on  (he  ground 
of  a  prior  marriage,  is  different  from 
decrees   of   divorce,  a  vinculo   matri- 
monii,  for  other  causes.     It   proceeds 
on  different  principles,  and  is  more  dis- 
astrous in  its  consequences.     It  con- 
siders  the  marriage  null   and  void; 
the   connection    between    the    parties 
meretricious,  and  not  connubial  ;  and 
the  children  illegitimate,  and  subject 
to  all  the  legal  disabilities  of  illegiti- 
mate issue.  Ib.. 

3.  Semble.  That  in  such  case  the  com-j 
plainant  would  be  entitled  to  the  prop- 
erty she  possessed  before  the  supposed 
marriage,  it'  it  remained  unexpended, 
or  undisposed  of.  Ib. 

4.  This  court,  under  the  statute,   (Rev. 
Laws,  663,  s.  10,)  has  original  juris- 
diction   to   allow    alimony,    although 
there  is  no  decree  for  a  divorce.     Mil- 
ler v.  Miller.  386 

5.  Articles  of  separation,  signed  by  the 
parties,  are  no  bar  to  the  claim  of  the 
wife  upon  the  husband  for  alimony. 


6.  When  a  wife  voluntarily  leaves  her 
husband,  but  afterwards  offers  to  re- 
turn, if  he  refuses  to  live  with  her  and 
neglects  to  provide  for  her,  the  court 
will  order  a  suitable  maintenance  to 
be  provided  for  her  by  her  husband. 

Ib. 

7.  The  usual  course  is,  to  refer  it  to  a 
master,  to  ascertain  and  report  what 
ought  to  be  paid  for  the  wife's  sup- 
port.     But    testimony    having    been 
taken,  and  the  matter  debated  on  the 
hearing,  and  neither  party  requesting 
a  reference,  the  allowance  was  fixed 


by  the  court. 


Ib. 


8.  A  charge  in  the  petition,  that  the  de- 
fendant since  his  marriage  hath  com- 
mitted adultery,  without  setting  forth 
time,   place,  or  circumstances,  is  too 
general.     Clutch  v.  Clutck,  474 

9.  Upon   evidence  of  extreme  cruelty, 
though  not  a  case  of  the  most  aggra- 
vated character,  a  separation  decreed; 
for  the  term  of  three  years;  and   the! 
child,  being  of  tender  years,  committed: 
to  the  custody  of  the  mother.  Ib. I 

j 

10.  Query.  Whether  a  charge  for  adul-' 


tery,  and  a  charge  for  extreme  cruelty, 
ought  to  be  joined  in  the  petition.  Ib. 

Vide  EVIDENCE,  12,  13. 
WILL,  12. 


DOWER. 

.  At  common  law,  and  independent  of 
our  statute,  it  is  a  settled  rule  at  this 
day,  that  express  words  of  exclusion 
are  not  necessary  in  a  will  in  order  to 
bar  dower ;  it  is  sufficient  if  there  be 
a  manifest  and  unequivocal  intention. 
S(ark  v.  Hunton,  216 

.  This  intent  must  be  so  plain  as  to 
admit  of  no  reasonable  doubt.  The 
claim  of  dower  must  be  inconsistent 
with  the  will,  or  so  repugnant  to  ite 
provisions  as  to  disturb  and  defeat 
them.  Ib. 

.  If  the  intent  be  doubtful  or  ambigu- 
ous, the  legal  title  of  the  widow  will 
prevail.  Ib. 

.  In  the  following  devise :  "  I  give,  de- 
vise and  bequeath  unto  my  wife  Jane 
all  my  tavern-house  and  lot  where  I 
now  live,  together  with  all  the  furni- 
ture and  stock  in  the  same;  to  hnve 
and  to  hold  to  my  said  wife  Jane  dur- 
ing her  natural  life,  provided  she  re- 
mains my  widow:  but.  in  case  she 
shouldanarry  again,  then  it  is  my  will 
that  my  said  tavern-house  and  lot  and 
premises  be  disposed  of  according  to 
law;"  the  manifest  intent  of  the  tes- 
tator is,  that  it  should  be  in  lieu  of 
dower,  at  least  in  the  premises  so  de- 
vised. Ib. 

.  The  acts  of  the  widow  while  in  pos- 
session, treating  the  property  as  her 
own,  altering  and  improving  the 
property  to  enhance  the  annual  value, 
leasing  it  out  for  a  number  of  years, 
reserving  the  rent  to  herself;  are  con- 
sistent only  with  the  fact,  that  she 
considered  herself  as  holding  under 
the  will,  and  amount  to  an  acceptance 
of  the  devise.  Ib. 

6.  The  widow  having  married  again,  her 
estate  is  defeated ;  she  cannot  after- 
wards claim  her  dower,  and  the  de- 
vised premises  must  go,  according  to 
the  directions  of  the  will,  to  those 
lawfully  entitled  ;  that  is,  to  the  child- 


740 


INDEX. 


ren  of  the  testator,  and  those  repre- 
senting them.  Ib. 

7.  The  object  of  the  statute  of  the  24th 
of  February,  1820,  (Rev.  Laws,  677,) 
was,  to  compel  the  widow,  in  all  cases 
where  land  had  been  devised  to  her, 
to  elect  between  the  bounty   of  her 
husband  and  her  legal  rights,  and  to 
prevent  her  enjoying  both.     By  the 
just  and   reasonable   construction  of 
this  act  it  extends   to   all   lands   and 
real  estate  embraced  in  the  will  of  the 
testator.  Ib. 

8.  The   intent  of   the   act   is,   that,  the 
widow  should  not  be  entitled  to  dower 
in  any  lands  devised   by  will,  where, 
under  the  same  will,  she  took  an  in- 
terest in  land  or  real  estate  as  devisee. 

Ib. 

9.  How  far  the  statute  may   apply  to 
after   acquired   lands,   or  other   real 
estate  of  which  the  testator  may  be 
considered  as  dying  intestate,  query. 

Ib. 

10.  Where  the  widow  of  the  debtor  unites 
with  his  trustees  in  the  sale  and  con- 
veyance of  his  real  estate,  she  is  en- 
titled to  one  third  of  the  net  proceeds 
of  the  sale  for  her  dower.     State  Bank 
at  Elizabeth  v.  Marsh,  288 

Vide  LEGACY,  3-6 


E. 

EASEMENT. 
Vide  WILL,  7. 

ELECTION. 

1.  Where  a  plaintiff  sues  both  at  law  and 
in  equity  for  the  same  thing,  he  will, 
after  answer  filed,  be  put  to  his  elec- 
tion in  which  court  he  will  proceed ; 
and  if  he  elect  to  proceed  at  law,  or 
neglect  to  make  his  election  in  proper 
time,  his  bill  will  be  dismissed.    Cono- 
ver*s  Ex'rs  v.  Conover,  403 

2.  Where  no  steps  have  been  taken  in 
the  suit  at  law,  but  testimony  has  been 
taken  on  both  sides  in  this  court  rela- 
tive to  the  same  claim,  and  the  suit 
has  proceeded  in  this  court  without 
objection ;   the  complainant  will  be 


considered  as  having  made  his  elec- 
tion, and  any  further  proceeding*  at 
law  will  be  stayed  by  injunction.  Ib. 

Vide  DOWEK,  5,  7. 
LEGACY,  6. 


EQUITY  OF  REDEMPTION. 
Vide  MORTGAGE,  III. 

ESTATE. 
Vide  WILL. 

EVIDENCE. 

1.  A  witness,  who  may  be  responsible  as 
an  endorser  on  one  or  more  of  several 
notes,  is  a  competent  witness  between 
two  other  endorsers  of  the  same  notes, 
against   whom    judgments   had    been 
obtained,  and  their  respective  prop- 
erties sold,  subject  to  redemption  ;  as 
to  the  terms  of  a  subsequent  agree- 
ment between  them,  concerning  a  re- 
sale of  the  property:  his  responsibility 
as  an   endorser  does   not   create    an 
interest    in    the  event  of   that  suit. 
Wilson  v.  Hillyer,  63 

2.  When  there  is  nothing  in  the  suit  to 
change  the  liability  of  the   witness  ; 
or  when  the  change,  if  any,  is  only  in 
the  person  to   whom   the  witness   is 
answerable,  and  his  responsibility,  in 
all  events  of  the  cause,  is  equal;  the 
witness  is  not  disqualified.  Ib. 

3.  The  declaration  of  one  party,  in  the 
absence  of  the  other,  after  an  agree- 
ment  made,  touching  the    terms   of 
that  agreement,  is  not  competent  evi- 
dence for  the  party  making  the  decla- 
ration. Ib. 

4.  When  a  bond  has  been  casually  Io*t, 
a  party  is  at  liberty  to  come  into  this 
court  for  discovery,  or  for  discovery 
and  relief.    If  he  comes  for  discovery 
and  also  for  relief,  it  is  usual  to  attach 
to  the  bill  an  affidavit  of  the  loss  of 
the  deed.    Miller  v.  Wack,  204 

5.  The  affidavit  is  not  required  as  evi- 
dence of  the  loss,  but  to  establish  the 
propriety   of   this   court's   exercising 
jurisdiction.     If  the  defendant  by  his 


INDEX. 


741 


answer  does  not  admit  the  loss,  the 
complainant  is  put  upon  his  proof. 

Ib. 

6.  The  rule  in  courts  of  law,  is,  that  a 
party  in  a  cause  alleging  the  loss  of  a 
paper,  is  competent  to  prove  such  loss, 
for  the  purpose  of  letting  in  secondary 
evidence   of   the   contents ;    but    the 
court  will  be  careful   that  such  evi- 
dence is  confined  strictly  to   the  fact 
of  loss.  Ib. 

7.  The'  oath   of   the  defendant,    in   his 
answer,  that  the  mortgage  (he  sets  up) 
was   taken   away  and  cancelled  by  the 
mortgagor  fraudulently,  and  without  his 
consent,  is  to  the  very  point  in  contro- 
versy, and  does  not  come  within  the 
rule  which  admits  the  oath  of  a  party 
to  prove  the  loss  of  a  paper,  for  the 
purpose  of  letting  in  secondary  evi- 
dence of  the  contents.  Ib. 

&  The  answer  of  the  defendant  is  no 
evidence  of  the  fraudulent  abduction 
of  the  mortgage:  it  cannot  be  admit- 
ted to  repel  the  strong  presumptive 
evidence  of  payment  or  satisfaction, 
arising  from  the  cancellation  of  the 
mortgage  on  the  record.  Ib. 

9.  Parol  evidence  is  inadmissible  to  dis- 
annul or  substantially  vary  a  written 
agreement,  except  on   the  ground  of 
mistake   or   fraud.      The   Society  for 
Establishing    Useful  Manufactures    v. 
Haight,  393 

10.  Where  there  is  a  clear  subsequent 
and  independent  agreement,  evidence 
of  it  may  be  received  ;  but  not  where 
it  is  a  matter  passing  at  the  same  time 
with  the  written  agreement.  76. 

11.  There  are  instances  where  a  general 
understanding   and    practice  may  be 
pet  up  to^xplain  a  written  agreement,! 
but  it  must  amount  to  a  custom,  andj 
be   pleaded  as   a  custom   from    time] 
immemorial ;  such  as  the  custom  in 
favor  of  the  tenant's  taking  the  way- 
going crop ;    but   even   such   custom 
cannot  be  insisted  on,  if  it  be  excluded 
by  the  terms  of  the  agreement.       Ib. 

12.  In  divorce  cases  the  court  takes  the 
confessions  of  parties  with  very  great 
caution,  and  they  are  never  held  suffi- 
cient    without    strong    corroborative 
circumstances.     Clutch  v.  Clutch,  474 


13.  A  voluntary  affidavit  taken  before  a 
magistrate  is  inadmissible  as  evidence. 

Ib.  . 

14.  Where  the  bill  goes  on   an  original 
agreement   in   writing,  and   does  not 
mention  the  loss  of  it,  so  as  to  admit 
of  any  evidence  in   lieu  of  it;  parol 
evidence  of  its  contents,  or  a  paper 
purporting  to  be  a  copy  of  it,  is  not 
sufficient ;  but  the  pleadings  may  be 
amended  to  get  at  the  merits  of  the 
case.     Axtell's  Adm'r  v.  Axtell,       494 

15.  If  the  original   agreement  has  been 
lost,  and  due  diligence  has  been  used 
to   recover  it,   but   without  effect ;  a 
copy  may  be  received,  or  if  there  be 
no  copy  the  party  may  resort  to  parol 
proof  of  the  contents.  Ib. 

16.  The  complainant   is    competent    to 
prove   the   loss.     But   his    testifying, 
that  the  paper  was  in  his  possession 
some   time,  and  he  left  it   with  the 
arbitrators,  (to  whom  the  matter  had 
been  referred,)  since   which   he   has 
not  seen  it ;  that  he  has  often  searched 
for  it  among    his    own   papers,   the 
papers  of  his  decedent,  and  wherever 
he  supposed  it  probable  it  might  be 
found,  but  could  not  find  it,  and  be- 
lieves it  lost  or  destroyed  ;  and  one  of 
the    arbitrators     stating,     that     the 
original   agreement    was    before   the 
arbitrators  at  their  first  meeting,  that 
he   has   seen    it   since,   but  does  not 
know  what   has   become   of    it,    (the 
other  two  arbitrators  not  ha.ving  been 
examined,  or  called  on,)  is  too  indefi- 
nite to  show  the  loss  of  the  original 
agreement,  and  warrant  the  introduc- 
tion of  secondary  evidence.  Ib. 

17.  Upon  satisfactory  proof  of  the  exe- 
cution and  existence  of  a  deed,  and 
the  oath  of  the  party  that  it  is  lost, 
secondary   evidence   of    the   contents 
may  be  admitted.    Stafford  v.  Stafford, 

525 

18.  Evidence  going  to  show  that  a  deed 
might  have  been  obtained  by  fraud, 
misrepresentation,  or  deception,  is  not 
sufficient  to  support  a  bill  charging 
that   the   deed    ia    false,    forged,  and 
counterfeited.  Ib. 

19.  The  appearance  of  a  corporate  seal 
to  an  instrument,  is  evidence  that  it 
was  affixed  by  proper  authority.     A 
mortgage,  signed  by  the  president  and 


742 


INDEX. 


cashier  of  a  bank,  and  sealed  with  the 
corporate  seal,  is,  prima  facie,  duly 
and  lawfully  executed.  Leggett  v.  The 
New  Jersey  Manufacturing  and  Bank- 
ing Co.,  641 

20.  But,  while  the  common  seal  is  held 
evidence  of  the  assent  and  act  of  the 
corporation,  the  court  may  look  be- 
yond  the  seal,  and  inquire  in   what 
manner,    and    by  what   authority,    it 
was   affixed ;   and   it   may  be  shown 
that   it    was    affixed .  without    proper 
authority.      The    burden  of  proof   is 
on  the  party  objecting.  Ib. 

21.  If  the  doctrines  held  by  any  religious 
society  be  important  in  determining  a 
question  of  property :  the  party  who 
would  avail  themselves  of  their  doc- 
trines, must  prove  them.      Hendrick- 
#•»  v.  Decow,  577 

22.  A  bond  and  mortgage,  being  sealed 
instruments,    import,    prima  facie,   a  |5 
valuable  consideration ;    yet  the  de- 
fendants are  at  liberty  to  inquire  into 
the  consideration  ;    but  the  onus  pro- 
bandi  is  on  them,  and  unless  they  can 
impeach    it,    the    instruments    must 
stand.    Wanmaker's  Ex'rs  v.  Van  Bus- 
kirk,  685 


EXECUTION. 

Vide  DKBTOR  AND  CREDITOR,  4. 
JUDGMENT,  5-9. 
SHERIFF,  4. 


EXECUTION  CREDITOR 

Vide  DEBTOR  AND  CREDITOR,  2. 
JUDGMENT,  5-9. 


EXECUTORS  AND  ADMINISTRA- 
TORS. 

1.  Executors  of  a  mortgagee,  standing  in 
the  place  of  a  testator,  have  an  interest) 
in  the  controversy ;    the  mortgage  is 
in  their  hands,  and  they  have  a  right 
to  come  into  this  court,  to  be  satisfied 
the  amount  of  it,  out  of  the  property 
bound  by  it,  or  its  proceeds.     If  pro- 
bate  was   granted    without  the  state, 
query.     Copper  v.  Wells,  10 

2.  A  claim  for  rent  due  the  testator,  not 
having  been  mentioned  in  the  inven- 


tory, or  the  executors  having  settled 
their  accounts  in  the  orphans'  court, 
and  on  the  credit  side  prayed  allow- 
ance for  it,  as  not  being  collected  ; 
cannot  conclude  them  as  against  the 
debtor:  they  may  still  recover,  and 
in  case  of  recovery  they  are  liable, 
notwithstanding  the  account,  to  those 
beneficially  interested.  Conover's  Ex'r* 
v.  Conover,  403 

.  When  executors  have  settled  their 
account  in  the  orphans'  court,  if  there 
be  no  evidence  of  fraud  or  mistake, 
this  court  will  not  disturb  the  settle- 
ment; but  take  the  balance  stated  in 
the  account  to  be  the  true  balance  iu 
the  hands  of  the  executors.  Ib. 

.  The  vested  right  of  a  legatee,  upon 
his  death,  is  transmitted  to  his  per- 
sonal representatives.  Shaver  v.  Shaver, 

437 

.  The  next  of  kin  are  not  the  personal 
representatives,  and  cannot,  as  such, 
come  into  court  representing  the  an- 
cestor. Ib. 

.  Where  a  legatee  died  before  receiving 
his  legacy,  without  a  will,  and  there 
had  been  no  administration;  a  bill 
filed  by  his  next  of  kin,  to  recover  the 
amount  due  on  the  legacy,  held  bad 
on  demurrer :  such  a  claim  could  bu 
properly  made  only  through  the 
medium  of  an  administrator.  Ib. 

.  The  next  of  kin  may  come  into  this 
court  seeking  their  rights  against 
administrators,  calling  them  to  ac- 
count, or  seeking  a  distributive  share 
of  the  intestate's  estate.  They  have  a 
direct  interest,  which  they  may  law- 
fully assert.  Ib. 

,  After  payment  of  debts,  the  adminis- 
trator is  trustee  for  the  benefit  of  the 
next  of  kin,  alone ;  and  thgy  may  pro- 
ceed against  him  directly  lor  what  is 
due  them.  Ib. 

.  The  power  of  the  administrator  is 
over  all  the  estate,  not  only  for  the 
purpose  of  paying  debts,  but  for  the 
purpose  of  distribution ;  and  if  he 
come  into  court,  on  good  ground  of 
equity,  seeking  to  recover  assets,  the 
court  will  aid  him,  without  inquiring 
whether  they  are  to  be  appropriated 
to  pay  debts,  or  to  be  distributed 
among  the  next  of  kin.  Ib 


INDEX. 


743 


10.  Where,  after  administration  granted,! 
it  was  found  that  the  personal  estate! 
was  insufficient  to  pay  debts ;  and  thei 
elder  children,  having  been  advanced! 
in  money  and  goods,  agreed  with  the! 
administrators,  in  writing,  to  account! 
for  the  advancement  made  to  them,  to 
save  the  real  estate  from  being  sold) 
for  the  payment  of  debts,  and  to  do 
justice  to  the  younger  children  who 
had    received     nothing     from     their 
father ;  such  an  agreement  is  equita- 
ble  in   itself,  and  should  be  carried 
into    execution.      Axtell's    Adm'r    y. 
Axtell,  494 

11.  And  the  fact,  1  hat  after  the  agree- 
ment, the  authority  of  the  administra- 
tors who  made  it  had   been  revoked, 
and   administration    granted*  to    the 
present  complainant,  does  not  present 
any  obstacle  to  the  execution  of  the 
agreement.  Ib. 

Vide  ORPHANS'  COURT,  2-4. 


P. 

FEIGNED  ISSUE. 
Vide  ISSUE. 

FRAUD. 

1.  There  are  four  species   of  fraud.     1. 
Fraud  may  arise  from   facts  and  cir-j 
cumstances  of  imposition.     2.  It  may! 
be  apparent  from  the  intrinsic  value! 
and  subject  of  the  bargain  itself — suchi 
as  no  man  in  his  senses,  and  not  nnderj 
delusion,  would  make  on  the  one  hand,! 
and  as  no  honest  or  fair  man  would, 
accept  on  the  other.      3.  It  may   be 
inferred  from  the  circumstances  andi 
condition  of  the  parties  contracting; 
for  it  is  as  much   against  consciencel 
to  take  advantage  of  a  man's   weak- 
ness or   necessity,    as  his   ignorance. 
And,  4.  It  may  also  be  collected  from 
the  nature  and  circumstances  of   the 
transaction,  as  being  an  imposition  on 
third  persons.     Hinchman  v.  Email.'* 
•Adm'r,  100 

2.  In    cases   of    fraudulent   transfers   or 
assignments,  the  court  will   consider 
the  conveyance  as  void,  and  the  prop- 
erty as  bound  by  the  judgment  and 
execution  ;  and  will  give  effectual  re- 


lief to   the  diligent   creditor.      Dis- 
borough  v.  Outcalt,  298 

3.  It  is  a  well  settled  principle,  that  re- 
lief is  to  be  obtained  in  this  court  not 
only  against  writings,  deeds,  and  the 
most  solemn  assurances,   but  against 
judgments  and  decrees,  if  obtained  by 
fraud  and  imposition.     Crane  v.  Conk- 
lin,  346 

4.  If  there  has  been  the  suppression  of  a 
truth,  or  the  suggestion  of  a  falsehood, 
whereby  a  party  is  circumvented  or 
deceived,  equity  will  relieve  against 
it.  76. 

5.  Where   undue    advantage    has    beer, 
taken  of  the  weakness  or  necessity  of 
the  party,  or  of  any  situation  in  which 
he  is  placed,  rendering  him  peculiarly 
liable   to   imposition,  this  court  will 
interfere.     It   proceeds   on   the   safe 
principle,  of  protecting  those  who  are 
not  able  to  protect  themselves.      Ib. 

6.  It  has  become  the  settled  rule  of  this 
court,    that    it   will    not   interfere    to 
assist  a  person  on  the  ground  of  in- 
toxication merely;   but  if  any  unfair 
advantage  has  been  taken  of  his  situa- 
tion, it  will  render  all  proper  aid.  Ib. 

7.  Inadequacy   of   price   can    never   be 
the   ground   of  setting  aside  a  deed, 
unless    accompanied    with    fraud    or 
misrepresentation ;    but    this   ia  only 
where  the    party  is  able  to  contract. 
Where    the    party    was    intoxicated, 
inadequacy  of  price  is  direct  evidence 
of  fraud.  Ib. 

.  The  fact  of  the  price  not  being  paid, 
is  no  ground  to  set  aside  a  deed. 
The  fraud  must  be  in  the  original 
transaction,  and  not  in  the  non-fulfil- 
ment of  the  contract.  But  though  it 
does  not  change  the  nature  of  the 
transaction,  it  may,  if  proved,  be 
strong  testimony  to  show  its  real 
character.  Ib. 

9.  It  is  a  general  rule  in  equity,  that 
when  a  person  having  rights,  and 
knowing  those  rights,  sees  another 
person  take  a  mortgage  upon  prop- 
erty, without  disclosing  his  title, 
he  shall  not  be  allowed  afterwards  to 
set  up  his  title  to  defeat  the  mortgage. 
The  same  principle  applies  to  other 
transactions.  Crawford  v.  Bertholf, 

458 


744 


INDEX. 


10.  The  cases  under  this  head  of  equity, 
all  go  on  the  ground  of  misrepresen- 
tation    or     fraudulent     concealment, 
whereby  an   innocent   person   is   in- 
duced to  do  what  he  otherwise  would 
not  do  ib. 

11.  A  party,  to  be  charged  on  the  ground 
of  concealment,  should  be  aware  of 
his  rights.   Fraud  implies  knowledge ; 
if   there   was   a   mistake,   this   court 
will  not  consider  it  fraud.  Ib. 

Vide  JURISDICTION,  5.  i 


G. 
GUARDIAN  AND  WARD. 

Vide  MORTGAGE,  10. 

H. 

HEIRS  AND  DEVISEES. 

1.  Where  land  is  not  devised,  but  a  mere 
power  of  sale  given  to  the  executors, 
between  the  death  of  the  testator  and 
the  sale  of  the  land,  the   beneficial 
interest  is  in  the  heirs:  they  are  enti- 
tled to  the  rents  and  profits,  and  have 
a  right  to  make  a  disposition  or  trans- 
fer of  their  vested  interest.    Herbert 
v.  TuthiU's  Ex'rs,  141 

2.  At  common  law,  the  heir  became  per- 
sonally liable  to  specialty  debts  of  the 
ancestor,  by  reason  of  the  lands  de- 
scended, to  the  extent  of  their  value. 
The  statute  (3  W.  and  M.  c.  14)  placed 
the  heir  and  devisee  on  the  same  foot- 
ing.    They  are  personally  responsible 
after   alienation   of  the   estate,  as  ifj.3 
they  still  held  it :  but  bona  fide  pur- 
chasers under  them  never  were  liable  ; 
the  lands  in  their  hands  are  discharg- 
ed.    Skillman  v.  Van  Pelt,  511 


3.  Our  statute  "  for  the  relief  of  credit- 
ors against  heirs  and  devisees,"  passed 
7th  March,  1797,  extends  the  remedies 
to  all  debts  of  the  ancestor,  whether 
by  specialty  or  otherwise;  yet  pre- 
serves the  principle  that  bona  fide 
purchasers  shall  be  protected.  Ib. 

4  The  "  further  supplement  to  the  act 
making  lands  liable  to  be  sold  for  the 

Biyment    of     debts,"     passed     12th 
ecember,  1825,  creates  a  lien  on  the 


real  estate  of  the  ancestor  or  devisor, 
for  one  year  after  the  decease ;  and  it 
may  be  sold  by  virtue  of  an  order  of 
the  orphans'  court,  if  obtained  within 
that  time;  which  presupposes,  that 
before  that  act  no  such  lien  existed. 

li. 

Vide  LEGACY. 


HUSBAND  AND  WIFE. 

:  A  marriage  contract  in  this  country 
by  a  man  having  a  former  wife  living 
in  Scotland  at  the  same  lime,  is 
invalid  from  the  beginning  and  abso- 
lutely void.  The  first  contract  still 
existed  ;  it  was  not  affected  by  the 
fact,  tfiat  the  husband  and  wife  re- 
sided in  different  quarters  of  the  globe. 
Nothing  save  death,  or  the  judicial 
sentence  of  some  competent  tribunal, 
can  dissolve  the  marriage  relation. 
Zule  v.  Zule,  96 

.  An  agreement  between  man  and  wife 
to  live  in  a  state  of  separation,  cannot 
be  recognized  in  this  court  as  valid, 
and  such  agreement  is  a  direct  con- 
travention of  the  marriage  contract. 
It  is  contrary  to  sound  policy  as  well 
as  morality,  that  the  parties  who  have 
entered  into  the  marriage  state  should 
be  permitted  to  separate,  and  agree 
that  they  v\«ll  live  in  a  state  of  separa- 
tion, and  free  from  the  obligations 
imposed  on  them  by  the  marriage. 
The  marriage  contract  cannot  be 
annulled  and  cancelled,  nor  the  par- 
ties absolved  from  their  obligations 
of  it,  by  their  private  agreement. 
Miller  v.  Miller,  386 

.  The  effects  of  the  marriage  are,  that 
the  husband  and  wife  are  one  person  : 
he  hath  power  over  her  person  as  well 
as  estate,  and  he  is  bound  to  maintain 
her  in  a  suitable  manner,  according 
to  his  circumstances :  the  wife,  by 
marriage,  has  parted  with  her  prop- 
erty, and  placed  herself  under  the 
control  of  her  husband,  and  looks  to 
him  for  support.  Ib. 

When  a  wife  voluntarily  leaves  her 
husband,  but  afterwards  offers  to  re- 
turn, if  he  refuses  to  live  with  her 
and  neglects  to  provide  for  her,  the 
court  will  order  a  suitable  mainte- 
nance to  be  provided  for  her  by  her 
husband.  Ib. 


INDEX. 


745 


I. 
IDIOTS  AND  LUNATICS. 


1.  On  an  inquisition  returned  finding  a'j 
person  lunatic  and  of  unsound  mind 
at  that  time,  and  for  live  years  last; 
past,  a  third  person  representing  him-i 
self  to  be  the  attorney  in  fact  of  the 
alleged  lusatic,  cannot  be  heard  upon; 
petition  by  him  praying  that  the  in- 
quisition may  be  quashed,  or  a  news  ,6 
commission  issued,  or  a  traverse 
ordered  ;  he  is  not  interested  as  a 
purchaser  w  hose  title  might  be  affected 
by  the  inquisition,  neither  is  lie  liable 
as  vendor,  the  lunatic  himself  having 
executed  the  deeds  ;  he  has  no  inter- 
est which  entitles  him  to  be  heard. 
Covenhoven' s  ease,-  19 


2.  A  stranger  cannot  sue  out  a  commis- 
sion in  the  nature  of  a  writ  de  lunatico 
inquirentio,  nor  can  he  make  himself 
party  to  it  by  application  to  this  court ; 
lie  has  no  right  to  interfere  in  a  pro-i 
ceeding   of  this   nature.     The   party, 
who  seeks  to  quash  the  inquisition  or! 
traverse  the  find  ing  of  the  jury,  should: 
have  an  actual  interest,  legal  or  equita-i 
ble,   which  would  be  endangered  by 
the  finding  of  the  jury,  and  that  should 
be  manifested  to  the  court.  Ib. 

3.  Applications  on  the  part  of  third  per- 
sons  in   matters   of    lunacy   are    not 
encouraged,  yet  they  will  be  listened 
to  and  granted  when  actual  bona  fide 
interests  and  rights  are  endangered. 

Ib. 


4.  A  person  found  lunatic  may  appear 
and  traverse  the  inquisition  by  attor- 
ney, but  an  idiot  must  appear  before  1 
the  court  in  person.  Ib. 

5.  The   petition    for  a   commission    of 
lunacy   should    be    accompanied    by 
affidavits,    evincing   the  lunacy   of  the 
party.     This  may  be,  by  setting  for'.h 
the  unsound  state  of  the  mind  of  the 
person  against  whom  the  commission 
is  prayed,    and    mentioning   such   in- 
s'ances  of  incoherent  conduct  or  ex-j| 
pres-ion,  as  prove  him   unfit  to  con-ji 
tinue  in  the  management  of  his  owni  3 
affairs.     An  affidavit  setting  forth  no  1 
particular   act   or   expression    of  theji 
alleged  luna'ic,  from  which  the  courti' 
could  form  an  opinion  of  the  propriety!! 
of  granting  the  commission,  but  stat-jj 
ing  expressly,  that  for  the  space  of  i! 


six  or  seven  years  last  past,  the  de- 
ponent has,  by  frequently  observing 
the  behaviour  and  actions  of  the 
alleged  lunatic,  looked  upon  him  to 
be  deprived  of  his  reason  and  under- 
standing, so  as  to  be  incapable  of  the 
government  of  himself,  and  incompe- 
tent to  manage  his  own  aflairs,  is  suffi- 
cient, alter  inquisition  returned,  to 
sustain  it  as  regularly  issued.  76. 

,  It  is  not  necessary  that  the  inquest 
should  be  held  at -the  dwelling-house 
of  the  lunatic;  if  held  at  a  suitable 
place  in  the  neighborhood,  not  so  re- 
mote as  tq  induce  the  suspicion  of  un- 
fair practice,  or  to  preclude  the  jury 
from  inspecting  the  lunatic,  it  is  suffi- 
cient. Ib. 

.  It  is  not  necessary  that  the  evidence 
taken  before  the  jury  should  be  re- 
duced to  writing  and  returned  with 
the  inquisition.  Ib. 

.  Where  the  lunacy  at  the  time  of  the 
inquisition  found  is  not  questioned, 
but  a  traverse  is  sought  to  vary  the 
time  at  which  the  lunacy  commenced, 
to  exempt  from  its  operation  a  will 
executed  by  the  lunatic  within  the 
period  of  the  lunacy,  with  respect  to 
•which  the  inquisition  is  not  conclu- 
sive, it  will  not  be  granted.  /6. 


IGNOKANCE  OF  LAW. 

•k 
Vide  AGREEMENT,  3. 

INJUNCTION. 

,  An  injunction  cannot  issue  against  the 
purchasers  of  mortgaged  premises, 
they  not  being  parties  to  the  bill  to 
foreclose.  Vanderceer  v.  Tollman,  9 

.  Matters  of  defence,  having  come  to 
the  complainant's  knowledge  since 
the  trial  at  law,  are  proper  grounds 
for  granting  an  injunction  and  re- 
quiring discovery.  Camman  v.  Trcp- 
hayan's  Ex'r,  2S 

Past  injuries  are  in  themselves  no 
ground  ibran  injunction  :  the  province 
of  the  injunction  is,  not  to  afford  a 
remedy  for  what  is  past,  but  to  pre- 
vent future  mischief.  If  the  injuries 
were  continued,  or  the  right  to  con- 
tinue them  set  up  and  persisted  in  by 


746 


INDEX. 


the  defendants,  this  court  would,  if 
the  fuels  were  properly  established, 
interfere  by  injunction  effectually  to 
protect  the  complainants.  Society  for 
Establishing  Useful  Manufactures  v. 
M orris  Caned,  157 

4.  The  power  of  the  court  to  grant  in- 
junctions in  case  of  nuisance  is  un- 
questionable; but  the  exercise  of  the 
power  must  always  rest  in  the  sound 
discretion  of  the  court,  to  be  governed 
by  the  nature  of  the  case.'  Ib. 

5.  Upon    a    bill    filed,    and   injunction 
allowed,   to   restrain    proceedings   at 
law,  and   a   plea   of  a  judgment   re- 
covered ;  upon  which  issue  was  joined 
and  proofs  taken  in    support   of  thej 
plea:— The  facts  of  the  plea  appear- 
ing to  be  proved,  the  injunction  wasj 
dissolved,  and  the  bill  dismissed  with 
costs.     Camman  v.  Traphagan's  Ex'r, 

230 

6.  An  order  in  the  nature  of  an  injunc- 
tion may  be  made  to  stay  proceedings 
in  this  court.     Miller  v.  Ford,        358 

7.  When  the  facts  are  such  as  constitute 
no  defence  at  law,  though    properly 
produced  ;  if  they  are  matters  of  which 
a  court  of  law  can  take  no  cognizance, 
and  such  as  are  peculiarly  within  the 
province  of  a   court   of  equity,  there 
can  be  no  objection  to  the  bill  on  the 
ground  that  it  was  not  filed  pending 
the  suit  at  law,  and  an  injunction  can- 
not   be    dissolved    on    that    ground. 
Quackeii.busk  v.  Van  Riper,  47l> 

8.  When  a  charge  is  not  fully  answered, 
yet  if  the  complainant  do  not   show 
himself  entitled  to  claim  the  equity 
growing   out   of  that    transaction,    it 
will  not  stand  in  the  way  of  dissolving 
the  injunction.  Ib. 

9.  When  the  answer  is  sufficient,  and  the 
complainant's  equity  denied,  the  in- 
junction will  be  dissolved.  Ib. 

10.  The  distinction  in  the  English  books, 
between  a  common  injunction  which 
issues  on  some  default  of  the  defend-j 
ant,  and  special   injunctions  granted 
on  special  application  to  the  court,  is 
of  no   importance.      All   injunctions 
here   are  granted  on  the  merits  and 
on  special  application  to  the  court,  andj 
generally  ex  parte,  on  filing  the  bill. 
Buckley  v.  Corse,  504! 


11.  Whether  notice  shall  be  given  de- 
pends on  no  settled  rule  of  practice, 
but  on  the  nature  of  the  case.     If  it  be 
one  of  great  difficulty  or  importance, 
the  court  will  generally  require  notice 
to  be  given.  Ib. 

12.  After  filing  the  bill,  and  appearance, 
application    for    injunction    may   be 
made  without  notice,  and,   if  it  be  a 
case  that  requires  it,  notice  will  be 
ordered.  Ib. 

13.  Where  application  for  injunction  is 
made    after   answer    filed,   notice    is 
necessary  according   to  the  thirtieth 
rule   of   practice ;    but   even  then  it 
may  be  dispensed  with.  Ib. 

14.  An   injunction  allowed  by  a  master 
on  application  after  answer,  and  with- 
out  notice,   is   irregular,    unless    the 
notice   was  dispensed    with    by    the 
master;  which,  if  it  be  a  proper  case, 
may  be  presumed  to  have  been  done. 

Ib. 

15.  If   there,  was   no   dispensation,   the 
court  would  not  set  aside  the  injunc- 
tion simply  for  that  reason,  if  it  ap- 
peared to  be  a  case  in  which  the  rule 
might  properly  have   been  dispensed 
with;  but  would  retain  it,  and  order 
the  complainant   to   pay  the  cost  of 
the  application.  Ib. 

16.  After  an  injunction  dissolved  on  the 
merits   the    party   may    amend    and 
obtain  an  injunction  on  the  amended 
bill.  Ib. 

17.  There  can  be  no  doubt  of  the  power 
of  this  court  to  stay  the  commission 
of  waste  by  injunction  ;  it  is  constant- 
ly exercised,  and  is  necessary  to  the 
administration  of  justice.   Southard  v. 
Morris  Canal  and  Banking  Co.,       518 

18.  Even  in  cases  of  trespass,  courts  of 
equity    have    repeatedly    held,    that 
wlien  the  damage  was  great  and  irre- 
parable, or  by  constant  repetition  cal- 
culated   to   do   lasting   injury  to  the 
inheritance,   they  would   interfere  to 
prevent  the  evil.  Ib. 

19.  The  power  of  a  court  of  equity  to 
interpose   by   injunction   in   cases  of 
waste,  private  nuisance,  and  great  and 
irreparable  injury  to  the  inheritance  is 
well  established.     It  does  not  rest  on 
modern  or  questionable  decisions,  but 


INDEX. 


747 


is  ancient,  uniform,  and  not  now  to 
be  shaken.  Scudder  v.  The  Trenton 
Delaware  Falls  Co.,  694 

20.  The  late  cases  have  so  construed  this 
power  as  to  embrace  trespasses  of  a 
continuous  or  extraordinary  charac- 
ter ;  and  have  gone  upon  the  ground, 
that  the  properly  to  be  protected  was 
of  peculiar  value,  for  the  injury  or 
destruction  of  which  a  recompense  in 
damages  could  not  be  made.  Ib. 

Vide  ELECTION,  1. 

PRACTICE,  9,  10,  12. 


INTEREST. 

Vide  ADVANCEMENT,  3. 
LEGACY,  3-5. 


.  INTOXICATION. 

Vide  FRAUD,  6,  7. 

VENDOR  AND  PURCHASER,  3. 


ISSUE. 


1.  It  is  the  province  and  the  duty  ofi 
this  court,  to  decide  upon  the  facts  and 
the  law,  except  in  cases  of  real  diffi- 
culty,  growing  out  of  contradictory 
testimony,  or  opposing  facts  and  cir- 
cumstances, which  it  is  impossible  for 
the  court  to  reconcile:  then  an  i*ue 
is  directed  to  inform  the  conscience  of 
the  court.    Miller  v.  Wack,  204; 

2.  Questions  of  law  and  fact  fas  to  the 
existence  and  validity  of  deeds,  &c.) 
may  be  investigated  and  tried  under 
the  direction  of  this  court,  either  by  a 
leigned  issue,  or  by  an  action  at  Jaw, 
brought   and    prosecuted    under    the 
direction    of   this    court.     Decker  v. 
Caskey,  427 

3.  Form  of  directions  for  prosecuting  an 
ejectment  in  the  supreme  court,  under! 
the  direction  of  the  court  of  chancery,' 
to  try   questions  as   to   the  existence! 
and  validity  of  a  deed  under  which j 
the  mortgagor  derived  title.  Ib. 

Vide  DAMAGES,  2. 


JUDGMENT  AT  LAW. 

1.  A  judgment  at  law  is  final  and  con- 
clusive  as  to   all  matters  of  defence 
within  the  parties'  knowledge  at  the 
time  the  trial  at  law  look  place.    Cam- 
man  v.  Traphayen's  Ex'r,  28 

2.  The  omission  to  file  a  state  of  demand 
in    the  court  for  the    trial   of   small 
causes,   might  authorize   the  reversal 
of  the  judgment  in  a  proper  tribunal, 
but  is   no  ground    for   the   equitable 
interference  of  this  court.    Jackson  v. 
Darcy,  194 

3.  If  the  want  of  an  affidavit  is  fatal  to 
the  judgment,  and   renders   void  the 
execution   and  sale,  so  that  no  title 
was   conveyed   to    the    purchaser    as 
against  the  complainant,  it  must  be 
by   force  of  the  statute;   if  so,  they 
are  as  inoperative  in  courts  of  law  as 
in  a  court  of  equity,  and   the  decree 
of  this  court  is  not  necessary  to  make 
manifest  the  nullity  of  these  proceed- 
ings. Ib. 

4.  Errors  and  irregularities  in  a  judg- 
ment  at    law   are   to  be  corrected  in 
some  direct  proceeding,  and   are  not 
subject  to   exception   when    the   pro- 
ceedings  are   collaterally    drawn    in 
Question.       Camman    v.    Tranhafjen'x 


question. 
Ex'r, 


Camman    v.    Trapluirjen'* 
230 


;5.  At  law,  a  judgment  and  execution 
constitute  no  lien  on  mere  equitable 
rights,  which  are  not  susceptible  of 
delivery,  or  possession:  they  operate 
on  legal  rights  only  ;  there  must  be  a 
seisin,  and  this  term  always  has  refer- 
ence to  a  legal  title.  The  same  prin- 
ciple is  established  in  reference  to 
mere  equitable  interests  in  personal 
property  ;  they  are  not  subject  to  levy 
and  sale.  Dinborouyh  v.  Outcalt,  293 

6.  On  this  subject  the  decisions  in  courts 
of  equity  are  in  accordance  with  those 
at    law.      They   consider    the    rights 
growing  out  of  a  judgment  and  exe- 
cution  at   law,   as  legal  rights;    and 
while  this  court  will,  on  various  prin- 
ciples  of   equity,   aid    the   courts  of 
common  law    in   the    prosecution  of 
legal  rights,  it  will  not  undertake  to 
enlarge  or  extend  thtm.  Ib. 

7.  In   cases  of   fraudulent   transfers   or 
assignments,  the   court   will  consider 
the  conveyance  as  void,  and  the  prop- 


748 


INDEX. 


erty  as  bound  by  the  judgment  and 
execution ;  arid  will  give  effectual 
relief  to  the  diligent  creditor.  Ib. 

8.  An  execution   creditor   at  law  bas  a 
right   to   come    into   this   court   and 
redeem  an  incumbrance  upon  a  chat- 
tel   interest,    in    like    manner    as    a 
judgment  creditor  at  law  is  entitled 
to  redeem  an  incumbrance  upon  the 
real  estate  ;  and  the  party  so  redeem- 
ing will   be   entitled  to  a  preference 
according  to  his  legal  priority.      Ib. 

9.  A    party,   by   his   execution   at   law, 
obtains    no    vested   interest   in    mere 
equitable  rights,  such  as   this  court 
will  aid  him  in  securing,  unless  they 
are  connected   with   some   fraudulent 
or  colourable  disposition  of  property  ; 
or  some  direct  trusts,  where  the  con- 
tract has  been  executed  and  the  cestui 
que  trust  is  in  a  situation  to  call  on 
the  trustee  for  the  property  ;  or  where 
there  is  a  right  of  redemption,  as  in 
cases  of  pledges  or  mortgages.          Jb. 

Vide  JURISDICTION,  4-7,  14,  15. 
MORTGAGE,  2,  20-22. 


JUDGMENT  CREDITOR. 
Vide  DEBTOR  AND  CREDITOR. 

JURISDICTION  (OF  CHANCERY.) 

1.  It  is  a  well  settled   principle  that  a 
court  of  equity  has  no  power  to  com- 
pel a  party  to  appoint  an  arbitrator. 
Copper  v.  Wells,  10 

2.  Equity  will  not  interpose  to  effect  the 
forfeiture  of  a  privilege,  the  divesting 
of  an  estate,   the   taking   away   of  a 
right    by    condition,    subsequent    or 
otherwise,  or  the   discovery  of  some 
matter  which  may  render  an  act  done 
illegal  and  thereby  subject  the  party 
to  a  penalty.     But  this  rule  does  not 
apply  to  the  case  of  reforming  a  mis- 
take in  a  bond  for  the  prison  limits. 
Smith  v.  Allen,  43 

3.  When  the  proof  of  a  mistake  in  a  bond 
is  full  and  satisfactory,  equity  will  re- 
lieve,   even    against    securities;    and; 
that  as  well  where  the   complainant! 
seeks    relief    affirmatively,    on     the' 
ground  of  the  mistake,  as  where  the 
defendant  sets  it  up  to  rebut  an  equity  :i  i 


such  a  case  is  not  within  the  statute 
of  frauds.  Jb. 

4.  On  a  bill  for  relief  against  a  verdict 
and  judgment  at  law,  the  verdict  must 
be  taken  as  conclusive  upon  the  facts 
before  the  jury :  there  can  be  no  ap- 
peal to  a  court  of  equity,  by  way  of 
new  trial.     Glover  v.  Hedges,          113 

5.  There  are  cases,  nevertheless,  in  which 
the   court    will    interfere   to    prevent 
fraud  or  gross  injustice  :    where  there 
has  been  a  fraudulent  concealment  of 
facts  on  the  part  of  the  plaintiff,  and 
a    judgment    obtained    against    con- 
science, equity  will  relieve.  Jb. 

6.  It   muet    appear,   however,   that  the 
party  seeking  relief  has  used  all  proper 
diligence  to  defend    himself  at   law  : 
the  possession  of  new  testimony,  which 
with    proper  cafe   might    have    been 
produced  before,   is  no  ground   for  a 
new  trial  at  law,    much    Jess   for   an 
equitable  interference  with  the  judg- 
ment. Jb. 

7.  The  court  ought  to  be  perfectly  satis- 
fied of  its  grounds,   before  it  under- 
takes to  defe.it  the  right  which  a  party 
has  acquired  by  the  verdict  of  a  jury  ; 
especially,  when  such    verdict  is  the 
result   of    an    investigation    of    facts. 
There  ought  to  remain  no  reasonable 
doubt.  Jb. 

8.  The    court   of   chancery   is   not    the 
proper  tribunal  for  calling  in  question 
the  rights  of  a  corporation,  as  such, 
for  the  purpose  of  declaring  its  fran- 
chises forfeited  and  lost.      The  Society 
for    Establishing    Useful  Manufactures 

v.  The  Morris  Canal  and  Banking  Co., 

157 

>.  The  omission  to  file  a  state  of  demand, 
might  authorize  the  reversal  of  the 
judgment  in  a  proper  tribunal,  but  is 
no  ground  for  the  equitable  interfer- 
ence of  this  court,  Jackson  v.  Darcy, 

1U4 

LO.  It  should  be  a  very  strong  case  to 
induce  this  court  to  injoin  proceedings 
at  law  on  the  ground  of  multiplicity 
of  suits;  but  if  the  right  should  be 
established  in  favor  of  the  defendant 
at  law,  and  the  plaintiff  should  per- 
sist in  any  oppressive  proceedings, 
this  court  will  promptly  interfere. 
Semble.  That  the  court  of  chancery 


INDEX. 


749 


will  not  interfere  to  restrain  proceed- 
ings at  law,  where  the  law  affords  an 
adequate  remedy.  Ib. 

11.  When  a  bond  has  been  casually  lost, 
a  party  is  at  liberty  to  come  into  this 
court  for  discovery,  or  for  discovery 
and  relief.     If  he  comes  for  discovery 
only,  it  is  in  aid  of  his  common  law 
remedy.     If  he  comes  for  discovery 
and  also  for  relief,  it  is  usual  to  attach 
to  the  bill  an  affidavit  of  the  loss  of 
the  deed.     Miller  v.  Wack,  204 

12.  This  affidavit  in  not  required  as  evi- 1 
dence  of  the  loss,  but  to  establish  the,; 
propriety   of    this   court's  exercising 

jurisdiction.  If  the  defendant  by  his 
answer  does  not  admit  the  loss,  the 
complainant  is  put  upon  his  proof. 

Ib. 

13.  Equity,  in  rescinding  contracts,  does 
not  confine  itself  to  cases  of  fraud ; 
cases  of  plain  mistake  or  misapprehen- 
sion of  right,  though  not  the  effect  of 
fraud  or  contrivance,  are  likewise  en- 
titled to  the  interposition  of  the  court 


Skillman  v.  Teeple, 


232 


14.  Courts  of  equity  will,  in  some  cases, 
aid  execution  creditors  to  obtain  sat-| 
isfaction   of  their  demands.     But  to 
warrant  its  interference,  there   must, 
be  some  equitable  ground  presented  ;' 
the  case  must  be  infected  with  fraud,! 
or  it  must  involve  some  trust  or  other 
matter  of  peculiar  equity  jurisdiction.' 
Disborough,  \.  Outcalt,  298 

15.  When  a  party  comes  into  this  court 
to  obtain  satisfaction  of  a  judgment,1 
he  must  present  himself  uiuier  some 
head  of  equity  jurisdiction  :   he  must 
show  that  the  debtor  has  made  some 
fraudulent  disposition  of  his  property, 
or  that  the  case  stands  infected  with 
some    trust,    collusion    or    injustice, 
against  which  it  is  the   province  of 
this  court  to  give  relief.  Ib. 

10.  It  will  interfere  to  remove  equitable 
incumbrances,  standing  in  the  way  of 
the  parties'  claim  at  law ;  and  being 
once  possessed  of  the  case,  it  will 
ascertain  and  settle  the  rights  of  all 


parties  concerned. 


Ib. 


17.  It  does  not  follow,  that  because  a 
party  may  resort  to  an  action  of  eject- 
ment, he  has  no  remedy  in  this  court. 
The  principle  is  too  broad,  and  the 


practice  of  the  court  against  it.  There 
are  many  cases  in  which  the  jurisdic- 
tion of  courts  of  law  and  equity  are 
concurrent,  and  the  party  is  at  liberty 
to  seek  relief  in  either.  Qrane  v.  Conk- 
lin,  346 

18.  This  court  may  control  the  proceed- 
ings of  other  tribunals,  for  the  pur- 
pose of  administering  more  complete 
justice;  it  is  one  of  its  most  valuable 
powers :  it  may  control  its  own  pro- 
ceedings  to  attain   the  same  object. 
Miller  v.  Ford,  358 

19.  Where  a  corporation  has  been  duly 
organized,   and    thereby    acquired   a 
legal  existence,  a  court  of  equity  will 
not,  upon  an  alleged  non-user  or  mis- 
user  of  its  corporate  privileges,  de- 
clare the  charter  to  be  forfeited  ;  such 
a  power  is  of  right  to  be  exercised  by 
a   court   of  law  and   not  a  court   of 
equity.      Attorney- General  v.  Stevens, 

369 

20.  Where  there  is  a  mere  allegation  of 
an  outstanding  title  or  incumbrance, 
this  court  will  not  interfere,  but  will 
leave  the  party  to  his  remedy  on  the 
covenant;  but  where  there  is  an  evic- 
tion, or  even  an  ejectment  brought,  it 
will  interfere.     Shannon  v.  Merselis, 

413 

21.  It  is  the  policy  and  duty  of  the  court 
to  se^le  all  claims  between  the  par- 
ties, in  one  suit,  if  possible;  and  upon 
a  question   arising   between   two   co- 
defendants,  where  the  matter  is  dis- 
tinctly  before    the    court,   upon    the 
pleadings  and  proof  between  the  com- 
plainant and  defendants  in  the  case, 
the  court  will  decide  the  rights  of  the 
defendants  as  between  themselves.  Ib. 

22.  It  is  the  duty  of  this  court  never  to 
do  justice  by  halves,  to  beget  business 
for  another  court;  or  when  a  cause  is 
fairly  within  its  jurisdiction,  to  leave 
open  the  door  for  further  litigation 
here  or  elsewhere.    Decker  v.  Caskey, 

427 

23.  A  defence  which  might  be  made  at 
law,  and  which  a  party  will  omit  or 
decline  to  make,  cannot  be  the  basis 
of  a  suit  in  equity;  unless  it  be  in 
case  of  fraud,  accident  or  trust,  pecu- 
liarly within  the  province  of  a  court 
of  equity,  or  when  the  jurisdiction  of 


750 


INDEX. 


the  legal   tribunal   cannot  admit  the! 
defence.     Quackenbush  v.  Van  Riper,* 

476 

24.  Courts  of  equity  now  go  on  the  broad 
principle,    that   where   a   mistake    is; 
manifest,  they  will,  in  the  exercise  of 
their  ordinary  jurisdiction,  correct  it, 
and  hold   the  party  according  to  hisj 
original    intention.      Ilendrickson    v.j 
Ivins,  562  j 

25.  The   court  of  chancery,   and  every 
other  court  in  New  Jersey,  has  the 
power  and  the   right  to  ascertain,  by 
competent  evidence,  what  are  the  re- 
ligious principles  of  any  man  or  set 
of  men,  when  civil  rights  are  thereon! 
to  depend,  or  thereby  to   be  decidedj 
Hendrickson  v.  Dtxow,  577  j 

26.  Tliis  court  cannot  inquire  into  the; 
doctrines  and  opinions  of  any  religious: 
society,   for  the  purpose  of  deciding 
whether  they  are  right  or  wrong;  butj 
may  inquire  into  them  as  facts  point- 
ing  out   the  ownership  'of  property. 


27.  If  a  fact  be  necessary  to  be  ascer-! 
tained  by  the  court,  for  the   purpose 
of  settling  a  question  of  property,  it 
is  the  duty  of  the  court  to  ascertain 
it;  and  this  must  be  done  by  suchj 
evidence   as  the   nature   of  the  casej 
admits  of.  Ib.\ 

28.  In  all  cases  where  a  corporation  ex-j 
ceed  the  limits  of  the  power  given; 
them,  or  abuse   or   misapply   it,  the! 
court  will  interfere:    but  it  will   not; 
give  its  aid,  where  the  powers  granted! 
have  been  exercised  in  good  faitll;  or 
where  they  are  discretionary,  or  where' 
the  right  is  doubtful.     Scudder  v.  The 
Trenton  Delaware  Falls  Co.,  691' 

Vide  DAMAGES,  1-3. 
FBAUD,  3-b'. 


JURY,  TRIAL  BY. 

Vide  CONSTITUTION. 


L. 

LANDLORD  AND  TENANT. 
I.  Where  a  party  has  occupied  premises 


matter  of  course,  that  he  is  bound  to 
pay  for  the  use  and  occupation,  unless 
he  can  show  an  agreement  to  the  con- 
trary, or  a  satisfactory  reason  whv  lie 
should  not  be  charged.  Oonover's 
Ex'rs  v.  Conover,  403 

2.  Whether  there  is  a  custom  of  the 
country,  that  when  a  party  is  entitled 
to  the  way-going  crop  he  can  take  the 
grain  only,  and  not  the  straw,  or  if  he 
take  the  straw  away  he  must  return 
it;  established  in  such  a  way  as  to 
justify  this  court  in  acting  on  it,  where 
there  is  no  written  contract,  query. 
Hendrickson  v.  Ivins,  562 


LEGACY. 

I.  The  testator  devised  as  follows:  I 
devise  to  my  son  Abraham  Quick  the 
remainder  of  my  land  in  Amwell,  &c. 
."  to  him  the  said  Abraham  during  his 
life  time,  and  if  he  should  die  before 
his  wife,  she  is  to  have  the  use  and 
benefit  of  the  said  devised  land  for 
her  support  as  long  as  she  remains 
his*  widow  and  no  longer  ;  and  at  her 
decease  I  devise  the  same  to  his 
heirs,  to  be  divided  between  them  as 
the  law  directs  when  any  die  intestate. 
I  have  devised  the  last  mentioned 
tract  to  my  son  Abraham  subject  to 
the  following  incumbrances,  to  wit: 
That  he  the  said  Abraham  is  to  pay  to 
my  daughter  Mary  one  hundred  and 
fifty  pounds,  in  the  following  manner, 
&.c.  :  and  he  the  said  Abraham  is  to 
pay  to  my  daughter  Rosanna,  in  case 
she  gets  married,  thirty-seven  pounds 
ten  shillings,  to  get  her  an  outset." 
By  this  devise  the  whole  estate  in  the 
devised  premises,  to  wit,  the  estate  lor 
life  and  the  remainders,  is  charged 
with  the  legacies:  and  the  devisee  for 
life  having  died  without  paying  them, 
and  his  estate  being  exhausted,  the 
amount  due  on  the  legacies  must  be 
raised  out  of  the  land,  by  sale.  Quick 
v.  Quick,  4 


2.  The  devisee  for  life  dying  insolvent 
before  payment  of  the  legacies,  the 
legatees  omitting  to  claim  the  same 
of  his  administrator  within  the  time 
limited  by  rule  of  the  orphans'  court, 
and  a  decree  of  the  court  barring 
creditors  who  had  not  presented  their 
demands  pursuant  to  the  statute,  do 
belonging  to  another,  it  follows,  as  a!!  not  affect  the  claim  of  the  legatees  to 


INDEX. 


751 


have  the  legacies  raised   out  of  the 
lands  charged.  Jb. 

3.  On  a  legacy  bequeathed  to  the  widow 
in  lieu  of  dower,  interest  allowed  after 
one   year   from    the   testator's  death, 
upon  the  common  rule  applicable  to 
legacies  generally.  Church  at  Acquack- 
unonk  V.  Ackerman's  Ex'rs,  40 

4.  The  exception  allowing  interest  from 
the   testator's   death    on    legacies   in- 
tended as  a  maintenance,  applies  only 
to  infant  children,  and  does  not  ex- 
tend to  the  widow.  Ib. 

6.  The  allowance  of  interest  on  a  legacy 
is  not  regulated  by  the  fund  out  of 
which  it  is  to  be  paid,  whether  pro- 
ductive or  not.  Ib. 

6.  The  widow  is  excused  in  declining  to 
make  her  election  wlien  required  to 
do  so  by  the  executors,  and  in  not 
accepting  the  legacy  bequeathed  to 
her  in  lieu  of  dower,  while  a  contro- 
versy was  pending  respecting  the  will 
of  the  testator,  so  far  as  it  affected  the 
real  estate  with  which  her  rights 
under  the  will  were  in  a  degree  con- 
nected ;  and  having  afterwards,  within 
the  time  directed  by  the  court,  elected 
to  accept  the  legacy,  she  is  entitled  to 
interest  on  it  from  the  expiration  of 
one  year  after  the  testator's  death.  Ib. 


depend  on   the   annual  value   cf  the 
estate.  Ib. 

11.  The  devisee  is  liable,  personally,  to 
account  for  the  net  profits  which  have 
come  to  his  hands;  and  must  be  con- 
sidered as  holding  them  in  trust,  and 
responsible  over  to  the  legatee  who  is 
beneticaily  interested.  _  Ib. 

12.  The  vested  right  of  a  legatee  upon 
his  death  is  transmitted   to   his   per- 
sonal representatives.  Shaver  v.  Shaver, 

437 

Vide   EXECUTORS   AND    ADMINISTRA- 
TORS, 4-6. 
WILL,  1-5,  10. 


LEGISLATURE,  POWER  OF. 

1.  The  power  of  the   legislature   is   not 

:  omnipotent ;  it  has  boundaries  beyond 
which  it  may  not  pass.  It  cannot 

!  authorize  private  property  to  be  taken 
for  public  use,  without  providing  for 
a  just  remuneration  ;  and  in  regard 
to  those  public  rights  which  appertain 
to  the  citizens  generally,  a  common 
property,  it  cannot  make  such  dispo- 

:  gition  of  them  as  entirely  to  defeat  the 
citizens  of  their  common  rights.  At- 

;     iorney-  General  v.  Stevens,  3G9 


?.  The  testator  bequeathed  to  his  daugh- 
ter five  thousand  dollars,  "  lo  be  paid!' 
to  her  by  her  brother  out  of  the  estate 
given  to  him,  in  annual  payments  of 
live  hundred  dollars  a  year."     This 
legacy  is  a  charge  on  the  estate  of  the 
devisee,   (iu   the   devised    premises,)!] 
not   upon    his   person    or    upon    the  j 
land.     WallingtoH  v.  Taylor,  314 

8.  If,  therefore,  the  estate  of  the  devisee 
should    cease,    before    the    legacy    is 
paid,  the  land  would  be  discharged. 

Ib. 

9.  Although  the  devisee  is  not  personally 
liable,  yet  the  net  annual  profits  of  the 
estate,  if  any,  are  to  be  appropriated, 
yearly,  to  the  payment  of  the  legacy. 

Ib. 

10.  The  legatee  is  entitled  to  have  her 
money;  and  if  the  devisee  does  not 
pay  it,  in  exoneration  of  the  charge, 
the  estate  must  satisfy  it  in  some  way. 
The  legacy  is  absolute,  and  does  not 


This  power  is  not  confined  to  cases 
only,  where  no  possible  injury  would 
accrne*to  any  individual.  In  every 
case,  some  inconvenience  must  accrue 
to  individuals,  or  some  privileges  be 
measurably  impaired :  yet  if  such 
disposition  or  regulation  (of  the  com- 
mon right)  be  for  the  common  benefit; 
if  the  situation  of  society  and  the  wants 
of  the  public  require  it,  individual 
convenience  must  yield,  and  that  upon 
the  most  obvious  principles  of  the 
social  compact.  Ib. 

,  Private  property  cannot  be  taken  for 
private  use.  The  legislature  have  no 
right  to  take  the  property  of  one  man 
and  give.it  to  another,  even  upon  just 
compensation  made.  Scudder  v.  Tren- 
ton JJeiaware  Falls  Co.,  694 

4.  The  right  of  the  state  to  take  private 
property  for  public  use,  making  just 
compensation,  is  a  right  appertaining 
to  sovereignty,  which  the  state  may 
freely  exercise  on  all  proper  occasions, 


752 


INDEX. 


and  which  a  jury  has  no  power  to 
control.  Ib. 

5.  This  right  is  not  limited  to  the  actual 
use  and  occupation  of  the  property  by 
the  state;    for    private    property    is 
taken,  in  many  instances,  where  the 
state  in   its  sovereign   capacity   does 
not  and  cannot  occupy  it.     It  is  not 
limited   to  public   political   corpora- 
tions ;  for  the  right  of  private  corpora- 
tions to  take  private  property  for  a 
variety   of  purposes,  such   as   canals 
and  railroads,  is  not  disputed  at  this 
day.  Ib. 

6.  The  legislature,  in  this  state,  is  not 
omnipotent,  as  the  British  parliament. 
The  provisions  of  the  constitution  are 
paramount  to  the  power  of  the  legisla- 
ture;   and  whenever  the  legislature, 
in  the  exercise  of  its  authority,  trans- 
cends the  limits  clearly  prescribed  to 
it   by   the   constitution,   its   acts    are 
void  ;  and  it  is  the  duty  of  the  judi- 
ciary to  declare  them  so.  Ib. 

Vide  CORPORATIONS,  6. 


LIMITATIONS,  STATUTE  OF. 

1.  The  rule  in  courts  of  equity  now  is, 
that  they   will    take    notice    of   the 
statute  of  limitations,  and  apply  it  in 
the  same   manner   as  courts  of  law. 
Conover's  Exrs  v.  Conover,  403 

2.  To  take  a  case  out  of  the  statute,  when 
there  is  no  express  promise  to  pay, 
but  one  is  to  be  raised  by  implication 
of  law,  the   acknowledgment  of  thej 
party  ought  to  contain  an  unqualified' 
and  direct   admission  of  a   previous! 
subsisting   debt  which    the   party   is; 
liable  and  willing  to  pay.     If  there  be! 
accompanying    circumstances    which; 
repel  the  presumption  of  an  intention 
or  willingness  to  pay,  or  if  the  expres- 
sions be  vague  and  equivocal,  leading 
to  no  certain  conclusion,  the  evidence 
ought  not  to  be  admitted.  Ib. 

3.  The  statute  of  limitations  does  not,  in 
its  terms,  apply  to  courts  of  equity  ; 
but  the*y  have  always  felt  themselves 
bound  by  its  principles,  and,  except 
in  matters  of  strict  trust,  and  matters 
purely  equitable,  have  acted  in  con- 
formity with  them.    Wanmaker's  Ex'rs 
v.  Van  Bwskirk,  685; 


4.  If  for  a  debt  on  simple  contract,  the 
creditor  chooses  to  go  into  a  court  of 
equity,  the  defendant  shall  have  the 
benefit  of  the  statute  in  that  court,  as 
well  as  a  court  of  law.  Ib. 


LUNATICS. 
Vide  IDIOTS  AND  LUNATICS. 

M. 

MARRIAGE. 
Vide  HUSBAND  AND  WIFE. 

MASTEK,  REFERENCE  TO. 
Vide  PRACTICE,  III. 

MERGER. 
Vide  MORTGAGE,  30. 

MISTAKE. 

Vide  JURISDICTION,  3,  23. 


MORRIS  CANAL  AND  BANKING 
COMPANY. 

Vide  CORPORATIONS. 


MORTGAGE. 

L   Of  the  Mortgage  generally. 
II.  Assignment,   Cancellation,  and   Pri- 
ority of  Mortgage*. 

III.  Equity  of  Redemption,  Foreclosure 
and  Sale  of  Mortgaged  Premises, 
and  (he  application  of  the  proceeds 
of  the  sale  to  the  payment  of  differ- 
ent incumbrances  in  their  order. 

I.  Of  the  Mortgage  generally. 

1.  Executors  of  a  mortgagee,  standing 
in  the  place  of  the  testator,  have  an 
interest  in  the  controversy  ;  the  morl- 
gage  is  in  their  hands,  and  they  have 
a  right  to  come  into  this  court,  to  be 
satisfied  the  amount  of  it,  out  of  the 
property  bound  by  it,  or  its  proceeds. 
Copper  V.  Wells,  10 


INDEX. 


753 


2.  A  mortgage  given  for  purchase  money 
on  a  sale  of  land,  ky  one  defendant  in 
execution  to  his  co- defendant,  is  not, 
on  the  principle  of  lien  for  purchase 

'  money,  entitled  to  priority  over  the 
antecedent  judgment  against  both,  nor 
can  it  affect  the  title  of  a  purchaser' 
under  the  judgment,  although  the! 
property  was  levied  on  and  sold  «s 
the  property  of  the  mortgagor.  /Sim-' 
mons'  Ex'r  v.  Vcmdegrift,  55 

3.  Where    one    comes    into    possession 
under  mortgage  creditors,  he  may  be 
considered  as  a  mortgagee  in  posses 
e'ton  ;  yet  when  he  comes  in  purely  as 
a  volunteer,  whether  he  ought  to  be 
placed  in  a  situation  quite  so  favora- 
ble, quere.     Clark  v.  Smith,  121 

4.  Where  a  mor tgagee  in  possession  is 
necessarily  put  to  expenses  in  defend- 
ing or  securing  the  title,  he  is  entitled  | 
to  an  allowance  for  the  expenditure: 
as  where  he  has  been  put  to  expense, 
in   foreclosing  his  mortgage,   or   hug] 
advanced  money  for  fines  on  the  re- 
newal of  leases  under  which  the  prem- 
ises were  held,  or  has  expended  money 
in  defending  the  title   of  the   mort- 
gagor  to   the   estate,  when  his   title 
has  been  impeached,  it  may  be  added 
to  the  debt   of  'the   mortgagee;    and 
taxes,  if  paid  by  the  mortgagee,  are 
a  proper   charge   against   the  estate. 

Ib. 

5.  But  a  mortgagee  cannot    charge   for 
trouble  and  expense  in  receiving  the 
rents    and     profits,    although     there! 
may  be  a  private  agreement  for  suchj 
allowance  between  him  and  the  mort- 
gagor, nor  for  the  expense  of  insur- 
ance, which  is  considered  as  the  act 
of  the  mortgagee,  for  his  own  benefit. 

Ib. 

6.  So  where  a  mortgagee  in   possession 
undertakes,  without  the  consent  and 
approbation    of    the    mortgagor,    to 
make  improvements  on  the  property, 
though  they   may  be  of  a  beneficial j 
and  permanent  character,  he  does  it 
at  his  peril,  and  has  BO  right  to  look 
for  an  allowance  at  the  hands  of  the 
mortgagor.      If  the   mortgagor   does 
not  choose  to  have  the  improvements, 
the  mortgagee  has  no  right  to  impose 
them  upon    him,   and    thereby,   per-1 
haps,  deprive   him   of  the  power  of 
redeeming.  Ib. 

3 


.The  ordinary  rule  is,  that  money 
laid  out  in  improvements,  does  not 
create  a  lien.  If  the  mortgagor,  after 
giving  the  mortgage,  maizes  improve- 
ments on  the  premises,  the-  whole  of 
them  shall  *go,  if  it  be  necessary,  to 
satisfy  the  mortgage ;  and  so,  if  im- 
provements are  made  by  the  mort- 
gagee, they  are  .voluntarily  made, 
and  he  cannot  afterwards  turn  round 
and  claim  allowance  for  them.  They 
will  enure  for  the  benefit  of  the  estate, 
and  if  he  should  suffer  a  loss,  the 
maxim  will  well  apply,  volenti  non  fit 
injuria.  Ib. 

.  It  is  well  settled,  that  as  mortgagee 
in  possession  is  not  bound  to  expend 
money  on  the  mortgaged  premises, 
further  than  to  keep  them  in  "  neces- 
sary repair;"  this  language  has  been 
construed  strictly,  and  such  allow- 
ance put  on  the  ground  of  "absolute 
necessity  for  the  protection  of  the 
estate;"  for  such  expenditure,  when 
incurred,  he  will  receive  allowance. 

Ib. 

,  A  mortgage  given  by  a  guardian  to 
his  sureties  in  the  guardianship  bond, 
reciting  the  bond  given  to  the  ordi- 
nary, and  conditioned  "that  if  the 
said  guardian  should  and  would  faith- 
fully comply  with  the  condition  o£ 
the  said  bond,  by  paying  over  to  the- 
minor  mentioned  in  said  bond,  all  the- 
monies  in^  the  hands  of  the  said  guar-- 
dian,  as  guardian  of  the  said  minor,, 
when  he  arrives  at  full  age,  then  the 
said  mortgage  and  bond  should  cease 
and  be  void " — creates  no  trust  for 
the  benefit  of  the  minor.  The  mort- 
gagees are  the  absolute  owners  of  the 
mortgage;  they  have  the  legal  and 
beneficial  interest  in  it,  and  have  a 
right  to  treat  it  as  their  own.  Miller 
v.  Wack,  204 

10.  A  second  mortgagee,  and  those  hold- 
ing   under    him,  are  to   be   charged 
with  constructive    notice  of  the    prior 
mortgage,  on  record  and  undischarged, 
at  the  time  of  the  execution  and  re- 
cording of  the  second  mortgage.     Ib. 

11.  A   bona  fide   mortgagee,  from,  the 
heir  or  the   devisee,  shall    have   the 
benefit   of    his    security,   exonerated 
from  all  demands  by  means  of  any 
ipere  debts  of  the  ancestor  or  devisor, 
whether   by    specialty    or   otherwise.. 
SkiUmam  v..  Van.  Belt,  511. 


INDEX. 


12.  A  conveyance,  when  coupled  with  an 
agreement   in   writing,    that    if    the 
grantor  should  pay  a  debt  due  to  the 
grantee  within  a  year,  the  deed  should 
be  void;  is  in  equity  nothing  more  than 
a  mortgage ;  and  the  Complainant  is 
entitled  to  redeem  on  payment  of  the 
amount  due.     Youle  v.  Richards,  534 

13.  Whenever  it  can  be  clearly  shown  to 
be  the  intention   of  the   parties   that 
real  estate,  when  conveyed,  shall  be 
subject  to  redemption,  it  is  considered 
as  a  mere  security,  and  can  operate 
only  as  a  mortgage.  Ib. 

14.  The  agreement,  so  far  as  it  restricts 
the  right  of  redemption  to  one  year, 
is  void.    The  right  of  redemption  can- 
not be  restricted  to  a  limited  time,  or 
lo  a  particular  class  of  persons.       Ib. 

15. "  Once  a  mortgage  and  always  a 
mortgage,"- is  an  ancient  equity  maxim 
of  appioved  policy  and  wisdom.  Ib. 

16.  But  a  mortgagor,   for  good  cause, 
may  surrender  his  right  of  redemp- 
tion, and  render  the  title  of  the  mort- 
gagee absolute.  Ib. 

17.  A  mortgagee  in  possession  may  do 
no  act  to  prejudice  the  estate.    .He  is 
not   authorized  to-  cut  down   timber 
and  commit  waste  upon  the  premises, 
even  if  the  proceeds  were  applied  to 
the  extinguishment  of  the  debt.      Ib. 

18  A  mortgage  signed  by  the  president 
and  cashier  of  a  bank,  with  the  corpor- 
ate seal  affixed  by  them,  without  the 
authority  or  concurrence  of  the  board 
of  directors,  is  not  a  valid  instrument. 
Leggett  v.  New  Jersey  Manufacturing 
and  Banking  Co.,  541 

19.  A  second  mortgagee,  having  also  a 
judgment,  execution  and  levy  on  the 
mortgaged  premises  for  the  same  debt ; 
and  being  security  for  the  mortgagor 
on  two  notes  to  a  third  person ;  re- 
ceiving from  the  mortgagor  a  sum  of 
money  equal  to  the  amount  then  due 
on  the  notes ;  and  giving  him  a  re- 
ceipt for  the  money,  "  to  be  credited 
on  the  judgment,  provided  the  debtor 
should  indemnify  him  on  his  surety 
for  said  debtor  to  the  holder  of  these 
notes,"  with  a  parol  understanding 
"that  the  money  received  was  not  to 
be  considered  a  payment  by  the  debtor! 
on  the  judgment  until  he  should  pay 


the  amount  due  on  these  notes  to  the 
holder," — is  entitled  to  hold  his  mort- 
gage, judgment,  execution  and  levy, 
as  security  for  the  payment  of  all  the 
money  due  to  him  thereon,  and  also 
upon  the  notes  on  which  he  is  security  ; 
and  this  lien  is  perfect  against  the 
mortgagor,  and  all  persons  claiming 
under  him  by  subsequent  incumbrance 
or  conveyance.  Skillman  v.  Teeple, 

232 

20.  By  this  payment,  receipt  and  agree- 
ment, the  holder  of  these  notes   ac- 
quired an  interest  in  this  second  mort- 
gage, judgment  and  execution,  and  a 
lien  upon  the  mortgaged  premises  for 
the   payment  of   the   notes,  prior   to 
any  other  incumbrance  excepting  the 
first  mortgage,  which  interest  a  court 
of  equity  will  protect.  Ib. 

21.  The  holder  of  these   notes   (having 
this  security  for  their  payment,  com- 
prised in  the  same  lien  with  the  debt 
of  the  mortgagee,  to  wit,  the  mort- 
gage,  judgment  and  execution ;   and 
the  mortgagee  being   also   debtor  to 
the  holder,  as  security  on  these  notes) 
is  entitled  to  have  the  whole  amount 
due   on    the   notes    paid   out   of   the 
mortgaged  premises,   and  to  have  it 
paid  next  after  satisfaction  of  the  first 
mortgage,     although     the     premises 
should  fall  short  of  paying  the  whole 
amount  due  on  the  second  mortgage, 
judgment  and  execution.  Ib. 

Vide  EVIDENCE,  7,  8,  22. 
FRAUD,  9. 
PAYMENT,  8,  9. 
PARTNERSHIP,  3. 

II.  Assignment,    Cancellation,    and  Pri- 
ority oj  Mortgages. 

22.  When  a  first  mortgage  is  cancelled  on 
the  record,  the  legal  priority  attaches 
to   the    second    mortgage,   unle'ss    it 
should  appear  that  the  first  mortgage 
was  improperly  and  fraudulently  can- 
celled, without  payment   or   satisfae- 
faction,  and   without  the  consent   of 
the  first  mortgagees  or  either  of  them. 
Miller  v.  Waoit,  204 

23.  The  simple  cancellation  of  a  mort- 
gage on  the  record,  is  not  an  absolute 
bar,  unless  there  has  been  actual  sat- 
isfaction.    It   is   not   conclusive   evi- 
dence ;  the  facts  may  still  be  investi- 
gated.    But  it  is  evidence  of  a  high 


INDEX. 


755 


character,  and  sufficient  to  sustain  the 
rights  of  all  persons  interested,  unless 
the  party  setting  up  the  cancelled 
mortgage  shall  show  satisfactorily 
some  accident,  mistake  or  fraud.  Ib. 

24.  It  is  a  general  rule,  that  where  there 
is  a  bond  and  mortgage,  the  assign- 
ment of   the    bond    operates    as   an 
assignment  of  the  mortgage:  the  bond 
is  the  principal,  and  the  mortgage  is 
the  incident.    Stevenson  v.  Black,  338 

25.  Where  a  mortgagee  assigns  one  of 
the  bonds  secured  by  the^  mortgage, 
retaining  the  mortgage  himself;    the 
assignee  becomes  equitably  interested 
in  the  mortgage  to  the  amount  of  his 
debt  or  bond,  and  the  holder  of  the 
mortgage  a  trustee  for  the  assignee  of 
the  bond,  pro  tanto.  Ib. 

26.  But  the  assignee  of  the  bond  h°s  not 
any  claim  against  the  mortgagee,  per- 
sonally, growing  out  of  the  transfer  of 
the  bond  ;  his  claim  is  upon  the  mort- 
gage or  the  estate  bound  by  the  mort- 
gage,  and    that    claim    remains,   no 
matter  in  whose  hands  the  estate  may 
be.  Ib. 

27.  The  assignee  of  the  mortgage  stands, 
quo  ad  hoc,  in  the  shoes  of  the  mort- 
gagee ;   his  rights  and  liabilities  are 
the  same,  and  not  different.  Ib. 

28.  The  assignee  of  a  bond  and  mort- 
gage holds  them  subject  to  the  samel 
equity  that  existed  against  them  ini 
the  hands  of  the  mortgagee.   Shannonl 
v.  Marselis,  413 

///.  Equity  of  Redemption,  Foreclosure 
and  Sate  of  Mortgaged  Premises, 
and  the  application  of  the  proceeds 
of  the  sale  to  the  payment  of  differ- 
ent incumbrances  in  their  order. 

29.  Tt  is   not   a   necessary  consequence, 
when  the   legal  and   equitable  titles, 
meet    in    the   same   person,  that  the; 
equitable  title  becomes  merged  in  the 
legal.     When  the  holder  of  a  mort- 
gage   takes  a    release  or  conveyance' 
of  the  equity  of  redemption,  a  "court 
of  chancery  will  consider  the  mort- 
gage as  subsisting,  when  the  purposes 
of  justice   require   it.     Hinchman  v. 
E'tnans1  Adm'rs,  100 


30.  On  general  principles,  the  purchaser 
of  an   equity  of  redemption   is    not 
personally   liable   for  the  amount  of 
the  mortgage  debt ;  by  the  purchase 
and  sale  the  liability  is  not  changed 
as  between  the  mortgagor  and  mort- 
gagee;  the  obligor  is  still  liable  to 
the   obligee  on    his    bond,   and    the 
obligee  or  his  assignee  cannot  transfer 
the  personal  liability  to  the  purchaser. 
Stevenson  v.  Slack,  338 

31.  As  between  the  mortgagor  and  the 
purchaser  of  a  simple  equity  of  re- 
demption, where  the  mortgage  money 
constitutes,  in  fact,  a  part  of  the  con- 
sideration of  the  purchase;  the  mort- 
gagor has  a  right  to  be  indemnified 
by  the  purchaser,  against  all  personal 
liability  on  the  bond.  Ib. 

32.  The  uniform  language  of  a  court  of 
equity  is,   that   where  the  purchaser 
(of  an   equity  of  redemption)  is  in 
possession  and  receives  the  rents  and 
profits,  there  is  raised  upon  his  con- 
science,  independently   of   any   con- 
tract, an  obligation  to  indemnify  the 
vendor  against  the  personal  liability 
to  pay  the  mortgage  money.  Ib. 

33.  By  a  mortgagee,  or  assignee  holding 
one  of  the  bonds  secured  by  a  mort- 
gage, becoming  the  purchaser  of  the 
equity  of  redemption,  that  part  of  the 
mortgage  debt  due  to  himself  on  the 
bond  he  holds,  is  extinguished.       Ib. 

%, 

34.  After  a  mortgage  is  given,  the  ulti- 
mate payment  tliereof  cannot  be  de- 
feated   by    any    conveyance    of    the 
mortgaged     premises     that    may    be 
made  by  the  mortgagor.    Shannon  v. 
Marselis,  413 

35.  But  where   new   rights  or  interests 
have  originated  since  fhe  execution  of 
the  mortgage,  although  the  mortgagee 
is  no  party  to  them,  and  they  may 
delay  him  in  the   prosecution  of  his 
remedy ;    yet  the  court   will   protect 
them,  and  direct  the  mortgage  to  be 
paid  out  of  such  parts  of  the  property 
as  may  be  most  equitable  to  all  par- 
ties concerned.  Ib. 

36.  Where  a  mortgagor,  after  giving  a 
mortgage,  sells  part  of  the  mortgaged 
premises  to  a  third  person  for  a  valua- 
ble   consideration ;    justice   demands 
that  the  residue  of  the  premises  in 
the  hands  of   the  mortgagor  should 


756 


INDEX. 


satisfy  the  mortgage  debt ;  and  the 
purchaser  acquires  a  right,  even 
against  the  mortgagee,  to  compel  him 
to  have  recourse  to  such  residue  for 
the  satisfaction  of  his  debt.  Ib. 

37.  If  the  mortgagor  sells  a  second  par- 
cel, this  second  purchaser  acquires 
rights  as  against  the  mortgagor  and 
mortgagee;  rights  also  arise  as  be- 
tween the  first  and  second  purchasers, 
as  to  their  liability  to  the  mortgage ; 
all  which  the  court  will  notice  and 
protect.  If  the  property  remaining 
unsold  in  the  hands  of  the  mortgagor 
is  sufficient  to  pay  the  debt,  both  pur- 
chasers will  be  protected ;  if  insuffi- 
cient, the  last  purchaser  contributes 
first,  and  if  there  still  be  a  deficiency 
the  first  purchaser  may  be  called  on  : 
thus  the  last  purchaser  is  first  liable. 

Ib. 

88.  The  first  mortgagee  having  prose- 
cuted his  bond  to  judgment  and  execu- 
tion at  law,  under  which  he  purchased 
the  mortgaged  premises  at  sheriff's 
Bale,  took  possession  and  received  the 
rents  and  profits.  The  second  mort- 
gagee is  entitled  to  redeem,  upon 
paying  the  principal  and  interest  of 
the  first  mortgage,  together  with  the 
costs  incurred  in-obtaining  the  posses- 
sion ;  deducting  thereout  the  rents 
and  profits  received,  or  that  with 
reasonable  diligence  might  have  been 
received  by  the  first  mortgagee  while 
in  possession.  Hill  v.  White,  435 

39.  In  such  case,  it  is  not  the  practice  to 
allow  interest  on  the  cost ;    nor  can 
any  thing  be  allowed  for  renting  and 
taking  care  of  the  property,  or  for 
any   thing   except  necessary  repairs. 

Ib. 

40.  Where  A.  has  a  first  mortgage  on 
two  lots,  and  B.  takes  a  second  mort- 
gage on  the  first  lot  only  ;  he  may, 
as  between   him  and  the  first  mort- 

fagee,  compel  the  satisfaction  of  the 
rst  mortgage  out  of  the  second  lot, 
as  far  as  the  proceeds  will  go.  Mickle's 
Ex'r  v.  Rambo,  501 

41.  A  release,  afterwards  given,  by  the 
first  mortgagee  to  the  mortgagor,  of 
all  his  interest  in  the  second  lot,  will 
not  prejudice  the  second  mortgagee, 
unless  he  assented  to  it.  Ib. 


42.  The  purchaser  of  the  equity  of  re- 
demption of  the  first  lot,  subject  to 
both  mortgages,  in  order  to  redeem, 
would  have  to  pay  the  whole  of  the 
second  mortgage  covering  the  first  lot 
only,   and  a  ratable   portion   of  the 
first  mortgage  on  both  lots,  according 
to  the  value  of  the  two  lots.  /6. 

43.  Upon  a  subsequent  sale  of  the  first 
lot,  on  a  bill  filed  by  the  first  mort- 
gagee, the  proceeds  are  to  be  applied 
to  satisfy,  first,  a  ratable  portion  of 
the  first  mortgage,  then  the  whole  of 
the  second  mortgage,  and  subsequent 
incumbr^nces  on  the  first  lot  in  their 
order.  Ib, 

Vide  MORTGAGE.  1. 13-17. 


?      N. 

NE  EXEAT. 
Vide  PRACTICE,  III. 

NEW  TRIAL. 
Vide  JURISDICTION,  4. 

NEXT  OF  KIN. 
Vide  EXECUTORS  AND  ADMINISTRATORS. 

NOTICE. 

When  one  affected  with  notice  conveys 
to  one  without  notice,  the  assignee,  in 
case  he  has  the  legal  estate,  shall 
be  protected.  Crawford  v.  Bertholf, 

458 

Vide  MORTGAGE,  1 0. 

VENDOR  AND  PURCHASER,  1. 

NUISANCE. 

Vide  INJUNCTION,  4, 19. 


O. 
ORPHANS'  COURT. 

1.  A  decree  of  the  orphans'  court  on  a 
matter  over  which  it  has  Jurisdiction, 


INDEX. 


757 


the  case  within  the  statute. 


Ib. 


5.  The  orphans'  court  cannot  decree  a 
sale  of  real  estate  for  the  payment  of 
legacies.  Skillman  v.  Van  Pelt,  511 

Vide   EXECUTORS   AND    ADMINISTRA- 
TORS, 3. 
WILL,  15. 


P. 

PARTIES. 
Vide  PLEADING,  L 

PARTNERSHIP. 

1.  Whether  land  purchased  by  partners 
in  trade,  as  between  themselves,  or 
between  them  and  their  creditors,  is 
to  be  considered  as  real  or  personal 
estate?  Quere.  But  where,  as  in  this 
case,  no  claims  of  creditors  interfered, 
and  the  partners  themselves  had  not 
considered  the  property  as  partner- 


if  fairly  obtained,  is  not  to  be  ques- 
tioned ;  but  it  is  a  court  of  limited 
powers,  and  if  it  transcends  its  juris- 
diction its  acts  will  pass  for  nothing: 
and  it"  an  order  is  obtained  by  fraud 
or  misrepresentation,  it  may  be  set 
aside  or  considered  null.  Gray  v. 
Fox,  259 

2.  An  order  of  the  orphans'  court,  ap- 
proving   the   investment   of   minors' 
money  by  administrators  or  trustees, 
without  the  leave  and  direction  of  the 
court  obtained  previous  to  such  in- 
vestment, is  not  made  in  pursuance  of  j 
any  authority  vested  in  the  court,  is 
not  within  its  jurisdiction, *and  there- 
fore is  no  protection  to  the  adminis- 
trators. 

3.  The   proper    course    to    be    pursued 
under  the  eleventh  section  of  the  act 
of   thirteenth    June,    eighteen    hun- 
dred and  twenty,  (Rev.  Laics,  779,)  is 
to  obtain  the  leave  and  direction  of 
the  court  for  the  purpose  of  putting 
out  the  money ;  and   not  to  put  out 
the  money  first  and  obtain  a  decree 
of  confirmation  afterwards.  Ib. 

4.  Although  a  farther  security  may  be 
offered  after  the  loan  is  made,  and  the 
court  may  approve  that  security  ;  that 
does  not  alter  the  principle,  nor  brinj 


ship  property,  but  treated  it  as  real 
estate,  and  separately  sold  and  con- 
veyed their  respective  moieties,  at 
different  times,  and  for  different 
prices,  it  must  be  considered  as  real 
estate.  Smith  v.  Wood,  74 

.  Where  real  estate  is  purchased  with 
partnership  funds,  but  the  conveyance 
made  to  one  of  the  partners  alon", 
although  the  legal  title  vests  in  him, 
he  holds  the  one  moiety  in  trust  for 
the  benefit  of  the  other  partner.  Said- 
win  v.  Johnson,  441 

.  If  the  partner  thus  holding  the  legal 
title  gives  a  mortgage  upon  the  prop- 
erty after  the  dissolution  of  the  part- 
nership, after  an  agreement  that  the 
other  partner  should  take  all  the 
partnership  property  and  pay  all  the 
debts,  the  mortgage  will  not  avail 
in  equity  unless  held  by  a  bona  fide 
purchaser  without  notice.'  Ib. 

.After  the  dissolution  of  a  partnership, 
the  authority  of  an  individual  part- 
ner over  the  joint  stock  ceases ;  he 
cannot  use  it  for  his  private  benefit, 
or  in  any  way  inconsistent  with  the 
closing  of  the  partnership  business. 

Ib. 

.  The  whole  of  the  partnership  prop- 
erty is  liable  for  the  partnership 
debts;  if  all  cannot  be  paid,  they 
must  be  paid  pro  rata :  this  court  can- 
not establish  a  preference,  on  the 
ground  of  an  unauthorized  act  of  one 
of  the  partners  after  the  dissolution. 

Ib. 


PAYMENT. 

1.  The  party  making  payment  has  the 
right  of  directing  its  application  to 
the  discharge   of   any  particular  de- 
mand he  may  think  fit,  provided  he 
does  it  at  or  before  the  time  of  making 
the  payment ;  but  if  the  payment  is 
nfade  generally,    without    any    such 
direction,  then  the   person  receiving 
may  apply  the  payment  to  any  de- 
mand in  his  hands  against  the  person 
by  whom,  or  on  whose   account,  the 
payment  is  made.     Smith  v.  Wood,  74 

2.  When   there  is  a    general   payment 
made  by  A.,  by  a  draft  in  favor  of  B., 
without  any  specific  appropriation  by 
A. — and  B.  gives  a  receipt  for  the 


758 


INDEX. 


draft  —  "  when  paid,  to  be  applied, 
first,  to  pay  interest,  and  next,  so 
much  principal  on  Jones's  bonds  and 
mortgage  on  the  Millville  property" 
—  this  is  an  express  appropriation  of 
the  funds,  by  which  all  parties  are 
bound.  It  cannot  afterwards  be  alter- 
ed, but  by  mutual  consent  ;  and  then, 
not  to  affect  the  rights  of  third  per- 
sons. Ib. 

3.  Connected    with    the    facts,  that  no 
interest    was    paid    and   no   demand 
made,  length  of  time  may  be  set  up  to 
show  that  nothing  was  due,  as  well  as 
to   raise  a  presumption  of  payment. 
Wanmaker's  Ex'rs   v.    Van  Buskirk, 

685 

4.  A  non-claim  for   twenty  years,   when 
the  parties  are  in  the  way  and  there 
is   opportunity   for  asserting  the  de- 
mand, is  strong  evidence  against  the 
existence  of  a  debt.  Ib. 

6.  Still  it  is  but  a  presumption  ;  and  the 
fact  that  the  parties  interested  were 
nearly  related,  and  the  collection  of 
the  money  might  have  occasioned 
distress,  and  even  the  payment  of 
interest  inconvenience,  taken  in  con- 
nection with  the  fact,  that  part  of  the 
money  included  in  the  mortgage  was 
an  advancement,  and  not  to  be  repaid, 
is  sufficient  to  repel  it.  Ib. 

6.  To  .authorize   a    court  to   say,   from 
mere  lapse  of  time,   unless  very  ex- 
traordinary, that  a  debt  never  existed, 
there  should  be  no  repelling  or  ex- 
planatory circumstances:    it  requires 
a  stronger  case  than  one  which  will 
justify  the  court  in  deciding   that  a 
debt,  once  due,  has  been  satisfied  or 
released.  16. 

7.  Yet  where  length  of  time  is  relied  on 
as  evidence  of  payment,    it  may  be 
repelled  by  showing   that  the  party 
was  a  near  relation,  or  was  insolvent. 


8.  As  to  mortgages,  the  presumption  of 
payment  may  be  raised  by   lapse  of 
time  without  interest   being  paid  or 
demanded  ,  but  what  shall  be  a  suffi- 
cient length  of  time  to  raise  such  pre- 
sumption has  not  been  clearly  settled. 

Ib. 

9.  The  better  opinion  appears  to  be,  that 
such  a  presumption  would  attach  at 


the  end  of  twenty  years  without  pay- 
ment or  demand  of  principal  or  inter- 
est; but  admitting  this  to  be  the  rule, 
it  is  but  a  presumption,  and  may  be 
repelled  by  a  variety  of  circumstances. 

Ib. 


PLEADING. 

I.  Pleading  in  General,  Parties. 
If.  Bill 

III.  Answer. 

IV.  Plea. 

V.  Demurrer. 

I.  Pleading  in  General,  Parties. 

1.  The  rules  of  pleading  in  a  court  of 
equity,  are  not  so  technical  and  pre- 
cise as  in  courts  of  law.     The  powers 
of  the  court,  and  modes  of  adminis- 
tering  relief,   authorize   and   require 
greater  liberality.     Still,  when   prin- 
ciples have  by  repeated  adjudications 
become  settled,  it  is  quite  as  important 
that  these  principles  should  be  pre- 
served in   this   as   any   other   court. 
Marselis  v.    The    Morris    Canal    and 
Banking  Co.,  31 

2.  The   court   will   not    permit    several 
plaintiffs  to  demand  by  one  bill,  sev- 
eral matters  perfectly  distinct  and  un- 
connected, against  one  defendant ;  nor 
one  plaintiff  to  demand  several  mat- 
ters of  distinct  natures,  against  sev- 
eral defendants.  Ib. 

Vide  IDIOTS  AND  LUNATICS. 
//.  Bill. 

3.  Where  the  demands  of  several  com- 
plainants united  in  the  same  bill,  are 
entirely    distinct    and    independent ; 
where    there  is  no   privity   between 
them  ;   no  general  right  to  be  estab- 
lished as  against  the  defendant ;    no 
common  interest  in  all  the  complain- 
ants, centering  in  the  point  in  issue  in 
the  cause ;   no  general  right  claimed 
by  the  bill  and   covering   the  whole 
case ;    no  rights  established  in  favor 
of   complainants ;    and    no    demand 
made,  that  the  funds  of  the  defendant 
shall  be  applied  to  the  payment  of  the 
complainants'  claims  after   their  ad- 
justment;  and  where  their  claims  are 
not  in  rem  but  in  personam — the  bill 
cannot  be  sustained.     Marselis  v.  Th* 
Morris  Canal  and  Banking  Co.,        31 


INDEX 


759 


4.  A    bill    by   several    to    compel    the 

specific  performance  of  a  contract  for 

the  sale  of  real  estate,  in  which  the 

complainants  hold  distinct  rights,  can- 

.  not  .be  sustained.  Ib. 

6.  Where,  upon  a  bill  filed  by  the  wife 
for  a  divorce  a  mensa  et  thoro,  on  the 
grounds  of  cruelty  and  desertion,  it 
appears  from  the  evidence  that  the 
defendant  had  a  former  wife  living  in 
Scotland  at  the  time  of  the  marriage 
with  complainant,  a  case  is  presented 
entirety  different  from  that  made  by 
the  bill,  and  no  decree  can  be  made. 
The  bill  dismissed,  but  without  costs. 
Zuie  v.  Zule,  96 

6.  To  enable  an  executor  to  maintain  a 
suit  in  this  court,  it  is  necessary  that 
the  fact   of  the   probate  of  the  will 
should  be  stated  in  the  bill.    Eden's 
EJr  v.  Rathbone,  331 

7.  When  that  is  done,  and  no  objection 
raised    by   the    pleadings,   a   probate 
taken  out  at  any  time  before  the  hear- 
ing is  sufficient.  Ib. 

8.  Alleging  in  the  bill  that  the  com  plain- 
ant   "  hath   taken   upon   himself  the 
burthen  of  executing  the  trusts  and 
duties   required   of  him   by  the  will, 
and  become  duly  qualified  as  execu- 
tor," is  not  sufficient  to  show  his  right 
to  sue  in  the  capacity  of  executor.  Ib. 

9.  An  original  bill  was  filed  by  Rachel 
Eden,  as   executrix,  and  also  as  de- 
visee   in    trust,   under    the    will    of 
Medcef  Eden,  deceased,  which  the  de- 
fendant answered.      Upon  the  death 
of  the  complainant,  a  bill  of  revivor 
and  supplement  was  filed  by  J.  Pelle- 
treau,  stating  himself  to  be  executor 
and  devisee  in  trust  under  the  will  of 
the  said  Medcef  Eden,  and  also  ad- 
ministrator of  the  said  Rachel  Eden, 
deceased  ;  which  was  demurred  to  for 
multifariousness.     But  the  bill  of  re- 
vivor corresponding  with  the  original 
bill,  and  bringing  before  the  court  the 
persons    representing   the   parties    to 
that  bill,   and  it  not  appearing  that 
the  complainant  relied  on  the  supple- 
mental matter,  or  any  claim  he  might 
have  as  devisee  in  trust,  it  was  held 
well.  Ib. 

10.  An    ejectment    bill,    technically  so 
termed,  is  one  brought  simply  for  the 
recovery   of   real   property,   together 


with  an  account  of  rents  and  profits, 
without  setting  out  any  distinct  and 
substantive  ground  of  equity  jurisdic- 
tion, which  would  be  demurrable 
where  there  is  no  proper  ground  of 
equity.  Crane  v.  Conktin,  346 

11.  But  a  bill  to  set  aside  a  fraudulent 
conveyance,  filed  by  those  who  with- 
out the  incumbrance  of  such  convey- 
ance are  undoubtedly  entitled,  is  alto- 
gether   different    from   an   ejectment 
bill,  and  comes  within  the  ordinary 
powers  of  this  court.  Ib. 

1 2.  The  bill  should  be  framed  to  meet 
the  case,  so  that  the  allegata  and  the 
probata  may.   agree,   with   reasonable 
certainty.     It  is  as  important  that  this 
rule  should   be   adhered   to    in    this 
court  as  in  a  court  of  law.    AxtelL's 
Adm'r  v.  Axtell,  494 

III.  Answer. 

13.  The  general  rule  is,  that  when  mat- 
ter is  set  up   by   the  defendants   in 
avoidance  of  the  complainants'  claim, 
it  must  be  proved  otherwise  than  by 
the  Answer.     Miller  v.  Wack,          204 

14.  The  statute   (Rev.  Laws,  667,  *.  2) 
directing  that  answers  to  bills  of  di- 
vorce "shall  not  be  under  oath  ; "  the 
answer,  though   sworn  to,  cannot   be 
considered  as  evidence  for   any  pur- 
pose.   Miller  v.  Miller,  386 

«. 

15.  If  a  defendant  in  his  answer  charge 
certain  facts  to  exist,  on  which  he  in- 
tends to    rely   for   his   defence,   and 
swears  to  the  answer  in  the  ordinary 
form,  he  swears  to  the  truth   of  the 
facts,  and  not  to  the  fact  of  the  charge ; 
and  if  the  facts  as  charged  are  not  true, 

.  perjury   may   be    assigned    upon    it. 
Quackenbush  v.  Van  Riper,  476 

16.  It  is  not  sufficient  for  the  defendant 
in  his  answer  to  say  he  does  not  know 
it,  or  does  not  believe  it;  as  that  may 
be  all  true,  and  yet  the  fact  charged 
be  uncontradicted.  Ib. 

17.  What  is  necessary,  and  sufficient,  in 
an  answer.  Ib. 

18.  It  is  not  sufficient  for  a  defendant, 
claiming  to  be  a  bona  fide  purchaser 
for    valuable    consideration    without 
notice,  to  deny  personal  knowledge  of 
the  matters  charged,  without  denying 


760 


INDEX. 


notice,  before  his  contract.  He  xnusl 
deny  notice,  even  though  it  be  not 
charged ;  and  he  must  deny  it  posi- 
tively, and  not  evasively ;  he  must 
even  deny  fully,  and  in  the  most  pre- 
cise terms,  every  circumstance  from 
which  notice  could  be  inferred.  Wil- 
son v.  HUlyer,  62 

IV.  Plea. 

19.  A  plea,  if  not  denied  by  a  replica- 
tion, must  on  the  argument  be  con- 
sidered as  true.     Cammann  v.  Trap- 
kagan's  Ex'r,  28 

20.  A  plea   in    equity  should  set  forth 
plainly  and  explicitly  'every  matter 
necessary  to  constitute  a  complete  de- 
fence and  bar   to   the   complainant's 

•  claim;  for -if  it  be  allowed  by  the 
court  as  correctly  pleaded,  and  is 
afterwards  proved,  the  cause  is  at  an 
end.  Meeker  v.  Butler's  Ex'r,  198 

21.  The   delivering  up  of  vouchers  on 
the  settlement  of  an    account  is  not 
essential,  aud  such  an  averment  in  a 
plea  is  unnecessary.  Ib. 

22.  When  the  bill  is  for  an  account,  it  is 
not  required  that  the  plea  should  set 
out  the  account ;  although  this  is  the 
proper  course  when  the  account  is  im- 
peached by  the  bill.  Ib. 

23.  When  all  the  allegations  of  the  plea 
being  taken  as  true,  do  not  make  out 
a  full  defence,  or  when  necessary  facts 
are  to  be  gathered  by  inference  alone, 
the  plea  cannot  be  sustained.         Ib. 

24.  Where  omissions  in  a  plea  are  acci- 
dental, and  can  readily  be  supplied, 
the    defendant    may    be    allowed   to 
amend  his  plea  in  such  particulars  if 
he  requests  it.  J.b.\ 


V.  Demurrer. 

25.  A    general     demurrer    admits    the 
truth  of  all  the  material  allegations  of 
the  complainant's  bill  that  are  well 
pleaded.    Smith  v.  Allen,  43 

26.  Where  a   bill  is  filed  for  discovery 
and    relief,    the    demurrer    (if    any) 
must  be  to  both  and  not  to  the  dis- 
covery alone.     Miller  v.  Ford,        358 


PRACTICE. 

1.  Amendment. 
II.  Costs. 

III.  Hearing  and  Re-hearing,  Reference 
to  Master,  Orders,  Ne  Exeat,  De- 
positions, Consolidation  of  Suits, 
&c.,  &c. 

I.  Amendment. 

1.  Where  omissions  in  a  plea  are  acci- 
dental and  can  readily  be  supplied, 
the    defendant    may    be    allowed    to 
amend  his  plea  in  such  particulars  if 
he  request  it.     Meeker  v.  Butler's  Ex'r, 

198 

2.  Amendments  to  a  plea  ordered  to  be 
made  in  twenty  days,  and  a  copy  fur- 
nished to  the  complainant's  solicitor 
free  of  expense,  and  in  default  there- 
of the  plea  ordered  to  stand  for  an 
answer  with  leave  to  the  complainant 
to  except  to  it.  Ib. 

3.  The  general  principle  is,  that  a  party 
is  bound  to  state  all  his  case  in  his 
first  bill.     But    if    the    complainant, 
after  filing  his  bill,  discover  that  he 
has  omitted  to  state  any  matter,  or  to 
join  any  person  as  party  to  the  suit, 
he  may  supply  the  defect  by  amend- 
ment.   Buckley  v.  Corse,  504 

4.  If  the  defendant  has  answered,  and 
the      complainant     thereby     obtains 
farther  knowledge  of  facts  or  circum- 
stances which    may   aid   him    in  the 
case,  he  may  amend  his  bill,  and  pro- 
ceed   according    to    the    information 
thus  obtained.  Ib. 

).  In  general,  any  imperfection  in  the 
form  of  a  bill  may  be  remedied  by 
amendment,  as  occasion  may  require, 
if  application  for  that  purpose  is 
made  in  time.  Ib. 

>.  Before  replication,  the  order  to  amend 
is  granted  of  course.  Ib. 

7.  After  an   injunction   is  dissolved  on 
the  merits,  the  party  may  amend  and 
obtain  an  injunction  on  the  amended 
bill.  Ib. 

8.  First    amendments    are     frequently 
allowed  on  coming  in  of  the  answer, 
without  special  affidavits,  on  reasona- 
ble terms.  Ib. 


INDEX. 


761- 


9.  Injunction   bills    may    be    amended 
without  prejudice  to  the   injunction, 
and  even    amended   a  second   time ; 
but  the   application   for  such  second 
amendment  must  disclose  its  nature, 
and  be  founded  on  affidavit  that  the 
complainant    had  not   a    knowledge 
of  the  facts  so   as  to  enable  him  to 
bring  that  case  on  the  record  sooner. 

/&. 

II.  Costs. 

10.  Upon   dissolving   an    injunction    to 
restrain  proceedings   on  a  judgment 
at  law,  and  dismissing  the  bill,  the 
costs  ordered  to  be   paid  out  of  the 

'moneys  deposited  in  court,  and  the 
remainder  of  the  deposit  ordered  to 
be  paid  to  the  defendant  on  his  judg- 
ment at  law.  Cammann  v.  Traphagan's 
Ei'r,  230 

11.  Where  there  was  an  offer  to  redeem 
and  the  money  tendered  before  suit 
brought,  but  the  conduct  of  the  mort- 
gagee in  possession,  in  not  receiving, 
not  appearing  to  have  been  improper 
or  vexatious,  each   party  ordered  to 
pay  their  own  costs.     Hill  v.   White, 

435 

12.  Where  an  injunction  on  an  original 
bill  was  dissolved  with  leave  to  the 
complainant  to  amend  his  bill,  and  on 
the  amended  bill  a  second  injunction 
was  granted — on  motion  made  to  dis- 
solve  the  second   injunction  because 
irregularly  obtained,  such  appearing 
to  have  been  the  case,  the  injunction 
was  continued,  but  complainant  order- 
ed to  pay  the  costs  of  the  original  bill, 
and  of  all  proceedings  up  to  the  time 
of  filing  the  amended  bill,  and  also 
the  costs  of  the  motion  to  dissolve. 
Buckley  v.  Corse,  504 

III.  Hearing  and  Re-hearing,  Reference 
to  a  Master,  Orders,  Ne  Exeat, 
Depositions,  Consolidation  of  Suits, 
&c.,  &c. 

13.  On  a  petition  and  order  for  re-hear- 
ing generally,  the  whole  case  is  open ; 
and  the  party  supposing  himself  ag- 
grieved, has   a  right  to  insist  on  a 
re-consideration  of    any    part   of  it. 
Glover  v.  Hedges,  113 

14.  Where  the  master,  not  supposing  it 
referred  to  him,  expresses  noN  opinion 
on  a  material  point ;  if  either  party 
have  farther  evidence,  and  desire  it, 


a  further  reference  will  be    ordered. 
The  Dutch  Church  at  Freehold  v.  Smock, 

148 

15.  The  master  'having  stated  the  execu- 
tors'   accounts    jointly,   and    it    not 
appearing  by  which  of  them  the  ex- 
cess of  the  debts,  &c.,  over  the  per- 
sonal estate  was  advanced,  a  farther 
reference  ordered.  J6. 

16.  Where  persons  interested  in  the  sale 
of  mortgaged  premises  are  not  made 
parties  to  the  bill  of  foreclosure,  and 
file  a  bill   for  discovery   and   relief, 
alleging  the  mortgage  to  be  usurious 
and  fraudulent,  an  order  in  the  nature 
of  an  injunction  may  issue,  restraining 
the  complainants  in  the  original  suit 
from   proceeding    therein    until    the 
further  order  of  the  court.     Miller  v. 
Ford,  358 

17.  Application  to  discharge  a  ne  exeat, 
not  having  been  made  until  after  the 
cause   was  noticed  for  final  hearing, 
refused.     Miller  v.  Mitter,  386 

18.  All  such  parts  of  depositions  as  go 
to  prove  matters   in   no   way   put  in 
issue  by  the  pleadings,  ordered  to  be 
stricken  out.  Ib. 

19.  Where  two  bills  were  filed  by  the 
executors  of  two  several  testators,  who 
were  tenants  in  common  of  all  their 
property,  and  devised  it  to  the  same 
person;^,  where  the  parties  interested, 
and  their  rights,  were  the  same  under 
both   wills ;    the  two   suits,  on  their 
hearing,  may  be  consolidated,  so  that 
one  investigation  and  report  of  the 
master,  and  one  decree,  may  settle  the 
whole.      Conover's  JEx'rs  v.    Conover, 

403 

20.  The  practice  of  examining  witnesses 
a  second  time,  on  the  same  matter, 
disapproved.      Crawford   v.   Bertholf, 

458 

21.  Upon    hearing,   on   bill,   cross-bill, 
answers  and  depositions,  where  both 
causes  came  on  to  be  heard  together ; 
and  each  party  has  material  allega- 
tions to  sustain  under  their  respective 
bills;  the  complainant  in  the  original 
bill  is   entitled   to   the   opening   and 
reply.     Stults  v.  Murphy,  560 

22.  Probate  of  a  will   granted   in   one 
:     state,  cannot  be  used  in  the  court*  of 


762 


INDEX. 


another.     Eden's  Ex'r  v.  E&thbone, 

331 

Vide  INJUNCTION,  11-14. 


PROMISSORY  NOTE. 

Vide  BILLS  OF  EXCHANGE. 
MOBTGAGE,  20-22. 


R. 

BEDEMPTION,  EQUITY  OF. 
Vide  MOBTGAGE,  III. 

EEFERENCE  TO  MASTER. 
Vide  PBACTICE,  III. 

REHEARING. 
Vide  PBACTICE,  III. 

RELIGIOUS  SOCIETY. 

1.  If  the  doctrines  held  by  any  religious 
society  be  important  in  determining 
a  question  of  property,  the  party  who 
would  avail  themselves  of  their  doc- 
trines  must   prove   them — page  (582. 
Hendrickson  v.  Decow,  577 

2.  Where  a  fund  was  raised  by  members 
of  a  religious  society  known  as  "the 
Chesterfield   Preparative  Meeting  of 
the    Society   of    Friends,    or    people 
called   Quakers,  at  Crosswicks,"   for 
the  declared  purpose,  "that  the  prin- 
cipal   should    remain    a    permanent 
fund,    under    the    direction    of    the 
trustees  of  the  scliool  at  Crosswicks,  to 
be  chosen    by  the    said   preparative 
meeting;   and  the  interest  should  be 
applied  to  the  education  of  such  child- 
ren as  then  or  thereafter  should  be- 
long to  the  same  preparative  meeting, 
whose  parents  should  not  be  of  ability 
to   pay   for  their    education ; " — this 
fund  may  not  be  divided  as  often  as 
this  body  shall  separate,  and  parts  of 
it  diverted  from  its  declared  purpose, 
and  appropriated  to  the  education  of 
children    of  persons   connected   with 
other  religious  persuasions — page  670. 

Ib. 


3.  The  trust  can  be  exercised  only  by  a 
meeting    of   the    religious    society  of 
Friends;  and  the  fund  can  be  used  on!  v 
for  the  education  of  children  of  persona 
belonging  to  a  meeting  of  that  societv 
— page  670.  Ib. 

4.  It  is  a   body  of  Friends,  with  their 
settled  and  known  characteristics   at 
that  time,  which  is    contemplated1  in 
the  trust — page  671.  Ib. 

5.  It  is  proper  and  legal  that  the  court 
should  notice  the  doctrine  of  the  pre- 
parative meeting  which  is  to  superin- 
tend the  expenditure  of  this  fund — 
page  683.  Jb. 

6.  A  separation  of  a  portion  of  the  reli- 
gious society  of  Friends  constituting 
the  yearly  meeting  of  the  society,  from 
that  meeting,  does  not  necessarily  de- 
stroy or  impair  it,  nor  as  it  respects 
its  legal  existence,  even   weaken  the 
original  institution — page  652.        Ib 

7.  A  portion  of  any  religious  society  can 
not  disfranchise  the  rest,  declare  the 
society  dissolved,  erect   among  them- 
selves a  new  body  within  the  limits 
of  the  ancient  society,  and  declare  that 
to    be     the     ancient    society — pages 
644-5-6.  Ib. 

8.  Where  an  officer  of  a  religious  societv 
was  duly  appointed,  and  the  term  of 
his  office  does  not  cease  by  limitation 
of  time,  the  presumption  is  that  he  re- 
mains in  office,  until  competent  evi- 
dence of  his  due  removal  is  given  ;  and 
whoever  claims  on  the  ground  that  his 
office  has  ceased,  must  establish  it  by 
lawful  and  sufficient  proof — page  600 

Ib. 

9.  When  a  majority  of  an  elective  body 
protest  against  the  election  of  a  pro 
posed  candidate,  and  do  not  propose 
any  other  candidate,  the  minority  may 
elect  the  candidate — page  621.         Ib. 

10.  Semble.    That   where  a  donation   is 
made  for  the  use  of  a  certain  religious 
society  at  a  particular  place,  the  right 
is  local  and  vests   in    such    religious 
society  at  that  place :  it  also  vests  in 
a  society  at  that  place  of  the  same  reli- 
gious persuasion,  holding  and  profess- 
ing the  same  religious  opinions,  doc- 

!  trine  and  belief;  and  if  that  society 
should  become  divided  in  religious 
opinion,  and  separate  into  two  dis- 


IXDEX. 


763 


tinct  bodies,    holding   different   doc-jl 
trine?,  the  right  of  property  would  re-'! 
main  with  that  portion  of  the  society^! 
•which  held  the  same  religious  opin-, 
ions,  doctrine  and  belief,  which  the  7 
original  society  held  at  the  time  the 
donation  was  made,  without  regard  to: 
the  fact  whether  they  were  a  majority! 
or  minority  of  the    members  of  the! 
original  society  Ib. 


BENTS. 

Vide    EXECUTOES    AND     ADMEIISTRA- 
TOBS,  2. 

HEIRS  ASD  DEVISEES,  1. 
LANDLORD  AND  TENANT,  1. 


SHERIFF  AND  SHERIFFS  SALE, 


affect  the  title  of  a  purchaser  at  the 
sheriff's  sale,  unless  the  purchaser 
had  notice  of  it.  Ib. 

.  Where  the  purchase  at  ihe  sheriff's 
sale  was  made  at  the  request,  or  with 
the  consent  of  the  defendant  in  execu- 
tion, and  for  his  benefit,  upon  an 
express  agreement,  that  he  should  be 
at  liberty  to  redeem  ;  and  complain- 
ant was  to  hold  such  interest  under 
the  sheriff's  deed  as  would  indemnify 
him  for  the  money  advanced  ;  and  the 
one  intended  .to  give,  and  the 
other  to  receive,  a  valid  security ; 
although  it  turns  out  to  be  insufficient 
in  law,  yet  the  purchaser  has  in 
equity,  a  vested  lien  on  the  property 
for  the  amount  of  his  demand,  and  the 
defendant  is  estopped  from  coming 
into  this  court  and  setting  up  any 
defect  in  the  title.  Vannesa  v.  Van- 
•at,  248 


1.  Mere  inadequacy  of  price  is  not  suffi-  8.  The  conveyance  of  the  sheriff  under 


ciem  to  avoid  a  contract  or  set  aside, 
a  sale  made  by  the  sheriff,  when  no 
fraud  or  irregularity  appears.  Semble.i 
That  leaving  personal  property  pur-< 
chased  at  sheriff's  sale  in  the  posses-, 
sion  of  the  defendant,  is  not,  of  itself, 
sufficient  to  vitiate  the  >ale.  Bank  of 
New  Brunswick  v.  Hassert,  L 

2.  Where  a  sheriff,  eolore  officii,  takes  a 
bond  for  the  performance  of  mattery 
not    authorized    by   the    statute,   the 
bond  is  void.    Smith  v.  Alien,         43 

3.  After    a   judgment    is    satisfied,   the 
sheriff  has  no  authority  to  sell,  and 
his  deed   can  convey  no  interest  to 
the  purchaser.    Simmons!  Etfr  v.  Van- 
degrift,  55 

4.  The  legal  process  of  execution  in  the 
hands  of  the  sheriff  is  not  affected,  or 
the  title  of  a  purchaser  at  the  sheriff's 
sale  impaired,  by  an  attachment  issued 
against  the  plaintiff  in  the  execution, 
and  levied  on  the  money  in  the  hands 
of  the  defendant,  after  the  execution 
levied,  and  before  the  sale.  Ib. 

5.  Mere   inadequacy   of   price,   without 
fraud  or  collusion,  is  not  sufficient  to 
set  aside  a  purchase  at  sheriff's  sale. 

Ib. 

6.  Irregularity    in    the    sheriff    selling, 
lands  before  goods,  without  a  written' 
request  irom   the  defendant,   cannot! 


these  circumstances  is  to  be  considered 
as  the  act  of  the  defendant  himself, 
and  he  shall  not  be  permitted  to  im- 
pugn it ;  as  between  him  and  the  pur- 
chaser he  is  precluded.  76. 

9.  The  sheriff  is  bound  to  sell  according 
to  law,  and  the  exigency  of  his  writ ; 
he  is  not  justified  in  imposing  terms 
on  the  purchaser  different  from  those 
imposed  by  the  law.  If  he  under- 
takes, by  any  conditions  of  sale,  to 
vary  t\ip  relative  position  of  parties, 
and  create  liabilities  which  the  law 
does  not  impose,  he  exceeds  his 
authority,  and  the  purchaser  is  not 
bound.  'Stevenson  v.  Black,  338 


SPECIFIC  PERFORMANCE. 
Vide  AGREEMENT. 

SURVEY. 

The  word  survey  does  not  necessarily,  ex 
m  termini,  mean  a  map  or  profile :  they 
are  sometimes  used  as  convertible 
terms,  not  always.  The  books  filed 
by  the  Camden  and  Amboy  Railroad 
and  Transportation  company,  in  the 
office  of  the  secretary  of  state,  con- 
taining a  description  (in  words  and 
figures)  of  the  commencement  of  the 
road,  the  different  stations  made  at 
the  time  of  the  survey,  the  courses 
and  distances  between  those  stations, 


764 


INDEX. 


and  the  number  of  stations,  to  the  ter- 
mination of  the  road, is  " a  survey  " 
within  the  meaning  of  that  provision 
of  the  charter  which  requires  that  "  a 
survey  of  such  route  and  location  (of 
the  road)  shall  be  deposited  in  the 
office  of  the  secretary  of  state ;"  at 
least  so  far  forth  as  to  warrant  the 
court  in  refusing  an  injunction  on  the 
ground  that  no  survey  whatever  has 
been  made.  Injunction  refused.  At-\ 
torney- General  v.  Stevens, 


PURVEYORS  OF  HIGHWAYS. 
Vide  CHOSEN  FREEHOLDERS. 

T. 

TRESPASS. 
Vide  INJUNCTION,  18,  20. 

TEIAL  BY  JURY. 

Vide  CONSTITUTION, 

TRUST  AND  TRUSTEE. 

1.  Collateral   securities  to  creditors  are 
considered  as  trusts  created   for   the 
better  protection  of  their  debts,  and 
equity  will  see  that  they  fulfil  their 
design.    SkiUman'v.  Teeple,  232 

2.  Where    a    trust    is    created   for  the 
benefit  of  a  person  without  his  knowl- 
edge at  the  time,  he  may  afterwards 
affirm  the  trust  and  enforce  its  per- 
formance. Ib, 

3.  It  is  a  rule  well  settled  in  the  English 
chancery,  and  adopted  by  this  court, 
that  if  trustees  loan  money  without 
due  security,  they  are  liable  in  case  of 
insolvency.     Gray  v.  Fox,  259 

4.  As  to  what  is  due  security,  the  princi- 
ple to  be  extracted  from  the  English 
authorities  is,  that  the  loaning  of  trust 
moneys,  and  especially  when  infants 
are  concerned,  on  private  or  personal 
security,  is  not  a  compliance  with  the 
rule  that  requires  due  security  to  be 
taken,  and  of  course,  that  such  loans 


are  made  at  the  risk  of  the  trustees ; 
but  this  rule  has  not  been  adopted  in 
its  full  extent  in  this  court.  Ib. 

5.  Where  trustees  have  managed  a  farm 
with  prudence,  and  for  the  benefit  of 
the    property,    and    account    for  the 
whole  net  proceeds ;  although  it  might, 
perhaps,  have  been  rented  for  some- 
thing more,  yet  they  ought  not  to  be 
charged  for  the  deficiency  unless  it 
can  be  considered  as  growing  out  of 
their    "default   or    neglect."       State 
Bank  at  Elizabeth,  v.  Marsh.         288 

6.  The  general  principle  is  well  settled, 
that  trustees  are  not  entitled  to  com- 
pensation for  services  rendered  in  the 
performance  of  their  trust ;  under  the 
order  for  "just  allowances,"  they  are 
entitled  only  to  charges  and  expenses. 

Ib. 

7.  But  when  by  the  interlocutory  decree, 
the  master  was  directed  to  allow  to  the 
trustees  <:  a  just  compensatian  for  their 
trouble,  charges  and  expenses,  in  tak- 
ing care  of  the  property,  making  sales 
thereof,  or  otherwise  in  and  about  the 
same  " — they  may  not  only  be  allowed 
for  charges  and  expenses,  but  also  be 
compensated  for  their  trouble  in  taking 
care  of  the   property,    making    sales 
thereof,  and  executing  the  trust,  by  a 
commission,  which  is  preferable  to  the 
allowance  of  a  gross  sum.  Ib. 

?.  In  cases  of  direct  trust,  such  as  mort- 
gages of  real  estate,  and  pledges  of 
personal  property,  the  court  will  give 
aid  on  its  own  peculiar  principles. 
Disborough  v.  Outca.lt,  298 

9.  When  a  contract  is  made  for  the  sale 
of  an  estate,  equity  considers  the  ven- 
dor as  a  trustee  for  the  purchaser,  of 
the  estate  sold ;  and  the  purchaser  as 
trustee  of  the  purchase  money,  for  the 
vendor.  Crawford  v.  Berthoif,  458 

Vide  CORPORATION,  9. 

EXECUTORS    AND    ADMINISTRA- 
TORS, 8 

MORTGAGE,  9,  26. 
ORPHANS'  COURT,  2-4. 


U. 

USE  AND  OCCUPATION. 
Vide  LANDLORD  AND  TENANT. 


INDEX. 


765 


USURY. 

1.  In  a  suit  in  equity,  upon  a  mortgage 
or  other  instrument  tainted  with  usury, 
the  defendant  may  set  up  the  usury, 
and,  if  he  can  prove   the  facts,  may 
avoid  the  instrument,  according  to  the 
letter  of  the'  statute.    Miller  v.  Ford, 

358 

2.  But  when  a   party  goes    into    court, 
seeking  relief  from  the  operation  of  an 
usurious  instrument,  he  must  offer  to 
do  what  equity  and  good  conscience 
requires  at  his  hands ;  that  is,  to  pay 
the  sum  actually  due ;  and  if  he  omit] 
to  make  such  offer,  the  defendant  may! 
demur.  •  Ib. 


V. 
VENDOR  AND  PURCHASER. 

1.  It  is  not  sufficient  for  a  defendant, 
claiming  to  be  a  bona  fide  purchaser 
for    valuable    consideration    without 
notice,  to  deny  personal  knowledge  of 
the  matters  charged,  without  denying 
notice,  before  his  contract.     He  must 
deny  notice,  even  though    it  be  not 
charged ;    and  he  must  deny  it  posi- 
tively,  and   not  evasively ;    he  must 
even  deny  fully,  and  in  the  most  pre- 
cise terms,   every  circumstance  from 
which  notice  could  be  inferred.     Wil- 
son v.  Hittyer,  ,  63 

2.  On  a  bill  by  the  vendor,  for  specific 
performance  of  a  contract  for  the  sale 
of  land  at  auction ;   where  it  appears 
that  the  vendee  was  induced  to  make 
the  purchase  by  the  fraudulent  con 
trivance  and  management  of  the  ven- 
dor, he  can  have  no  remedy  to  enforce 
the  contract  in  a  court  of  equity  :  but 
where  the  charge  of  fraud  or  collusion 
is   not   established    against  the  com- 
plainant, the  relief  he  seeks  cannot  be 
rightfully  withheld  on  that   ground. 
Rodman  v.  Zilley,  320 

3.  So  the  vendee  being  intoxicated  at  the 
time,  and  not  in  a  situation  to  judge 
correctly,  or  act  with  prudence,  will 
not  avail  him  to  avoid  the  contract, 
unless  he  can  show  that  it  was  pro- 
cured by  the  contrivance  of  the  ven- 
dor, or  that  an  unfair  or  improper  ad- 
vantage was  taken  of  his  situation.  Ib, 


4.  Where  a  vendor  conveys  land  by  deed 
with  covenant  of  warranty,  which  is 
subject  to  a  mortgage ;  if  the  amount 
of  the  mortgage  is  raised  out  of  the 
premises  conveyed,  and  paid  to  satisfy 
the  mortgage,  the  vendee  can  immedi- 
ately recover  it  back,  by  action  against 
the  vendor,  on  his  covenant.  Shannon 
V.  Marsdis,  413 

5.j3o  if  the  vendor  was  prosecuting  the 
vendee,  on  his  bond  for  purchase 
money,  this  court  would  enjoin  him, 
and  compel  him  to  appropriate  the 
money  so  as  to  discharge  the  incum- 
brance  against  which  he  had  cove- 
nanted. 76. 

6.  Where  a  vendor  conveys  land  which 
is  subject  to  a  prior  mortgage,  by  deed, 
with  covenant  of  warranty ;   and  the 
vendee  gives  a  mortgage  to  the  vendor 
for  purchase  money,  which  the  ven- 
dor assigns  to  a  third  person,  and  a  bill 
is  filed    upon    the    prior    mortgage, 
against  the   vendor,  vendee  and   as- 
signee of  the  second  mortgage;  if  any 
part  of  the  premises  so   conveyed   is 
taken  to  satisfy  the  first  mortgage,  the 
vendee  has  a  right  to  have  so  much 
deducted  out  of  his  purchase  money, 
or  the   mortgage   given    by  him    for 
purchase  money,  in  the  hands  of  the 
assignee.  Ib. 

7.  Every  man  purchases  at  his  peril,  and 
is  bound  to  use  some  reasonable  dili- 
gencejn  looking  to  the  title  and  the 
competency  of  the  seller;    it  will  not 
answer  to  rest  on.  mere  reputation  or 
belief,  unless  the  party  intends  to  rely 
on  his  covenant  alone.     Baldwin  v. 
Johnson,  441 

8.  The  rule  is,  that  a  person   claiming 
protection  (as  a  bona  fide  purchaser) 
must  have  paid  the  money ;  to  have 
secured  it  is  not  sufficient.  Ib. 

9.  When  a  contract  is  made  for  the  sale 
of  an  estate,  equity  considers  the  ven- 
dor as  a  trustee  for  the  purchaser,  of 
the  estate  sold  ;  and  the  purchaser  as 
trustee  of   the   purchase   money,  for 
the  vendor.     Crawford  v.  BertholJ,  458 

10.  As  a  consequence  of   this  rule,  the 
purchaser  may  sell  or  charge  the  estate, 
before    the   conveyance   is   executed. 
He  may  come  into  this  court,  claiming 
a  specific  performance  of  the  contract 


766 


INDEX. 


and  compel  the  execution  of  the  title. 

Ib. 

11.  If  he  has  been  paid  any  part  of  the 
purchase  money,  he  will  be  considered 
as  having  a  lien  on  the  property  for 
the  amount  thus  paid ;  and  a  court  of 
equity  will  not  compel  him  to  render 
up  possession,  until  he  shall  have  been 
re-paid.  Ib. 

12.  But  all  this  proceeds  on  the  princi- 
ple of  honesty  and  good  faith  between 
the  parties ;  without  this,  equity  will 
not  interfere.      If  there  be   fraud  in 
the  transaction,  equity  will  not  yield 
its  aid   to  the   wrong  doer,  but  will 
leave  him  to  his  legal  remedy.      Ib. 

13.  Upon  an  agreement  for  the  sale  of 
land,    of  which  a   memorandum    in 
writing  was  made  as  follows: — "Janu- 
ary 17,  1829.     This  may  certify  that 
James  Ivins  has  agreed  with  the  heirs 
of  Samuel  Hendrickson,  deceased,  for 
the  farm  where  Garret  Hendrickson 
now  lives,  and  the  said  James  Ivins 
is  to   give   them   forty-eight   dollars 
per    acre  for  the   same."      Although 
not  noticed  in  the  agreement,  it  may 
be  shown  by  parol  evidence,  that  it 
was  mentioned    at    the   time   of  the 
agreement,  and  admitted  by  the  vendee 
in  an  after-conversation,  that  the  green 
grain  then   growing  in   the   ground, 
and  some  wild  cherry  logs,  were  re- 
served in  the  sale;  and  this  part  of| 
the  agreement  is  not  within  the  stat-i 
ute  of  frauds,  and  will    be  enforced 
in  equity.    Hendrickson  v.  Ivins,   562 

14.  And  where  the  agreement   existed, 
without  any  alteration  in  this  respect, 
up  to  the  time  of  executing  the  deed  ; 
and  the  deed   was    executed  without 
it — whether   it  be  considered  a  mis- 
take in  the  scrivener  in  not  inserting 
it,  or  inadvertence  in  the  vendors  in 
not   insisting  upon    its  insertion,    is 
immaterial ;  the  mistake  in  the  deed 
will  be  rectified,  so  as  to  accord  with 
the  agreement  of  the  parties.          Ib. 

15.  In  the  case  of  vendor  and  purchaser 
the  contract  itself  must  govern  ;  and 
must  be  construed    according   to    its 
own  terms,  and  not  according  to  the 
customs  or  usages  between  landlord 
and  tenant,   in  respect    to   the  way- 
going <5rop.  Ib. 


L6.  Under  a  reservation,  in  a  contract 
for  the  sale  of  land,  of  green  grain 
in  the  ground,  the  whole  crop,  grain 
and  straw,  goes  together  and  is  re- 
served, under  the  term  green  grain  in 
the  ground.  It  is,  quo  ad  hoc,  an 
entirety,  and  cannot  be  separated  into 
its  component  parts ;  and  being  re- 
served, it  is  as  though  the  vendee  had 
purchased  the  land  without  any  such 
grain  being  in  the  ground,  and  he 
has  no  interest  in  it  whatever.  Ib. 

17.  Under  such  circumstances,  the  ven- 
dee was  properly  enjoined  from  prose- 
cuting a  suit  against  the  vendors,  for 
taking  the  grain  and  straw ;  and  the 
injunction  was  continued.  Ib. 


w. 

WASTE. 

Vide  INJUNCTION,  17-19. 


[WATER  COURSE. 

1.  Every  man  has  the  right  to  have  the 
advantage  of  a  flow  of  water  on  his 
own  land,  without  diminution  or  altera- 
tion; but  an 'adverse  right  may  exist, 
founded  on  the  prior  occupation  of 
another.  The  right  is  usufructuary  ; 
a  right  to  the  flow  of  water,  not 
to  the  water  itself.  Society  for  Estab- 
lishing Manufactures  v.  The  Morris 
Canal,  1 57 

,  The  right  to  the  use  of  a  navigable 
stream  is  a  right  common  to  all  the 
people  of  this  state.  Before  the  revo- 
lution, this  right  was  in  the  crown  ; 
the  people  are  now  the  sovereign 
power,  and  this  right  is  vested  in 
them.  It  is  their  property,  and,  as 
such,  may  be  disposed  of  for  the 
common  benefit,  in  such  way  as 
they  may  see  fit.  This  disposition 
can  only  be  made  by  the  legislature 
of  the  state,  which  is  the  rightful 
representative  of  the  people :  and 
where  such  disposition  is  made,"  con- 
sistently with  the  principles  of  the 
law  of  nature,  and  the  constitution  of 
a  well-ordered  society,'-'  it  must  be 
considered  valid.  Attorney-General  v. 
Stevens,  3t>9 

Vide  CHOSEN  FREEHOLDERS,  6. 
CORPORATIONS,  2-6. 


IXDEX. 


767 


WAY-GOING  CROP. 
Vide  LANDLORD  AND  TENANT. 

WILL. 

1.  B.  "Tnthill,   by  his   will,   after  some 
specific  bequest",  ordered  "'that  all  the 
rest  of  his  estate,  real  and  personal, 
be  sold  by  his  executors  and  turned' 
into   money,   as    soon   after   his   de- 
cease   as    conveniently     might     be, 
and  distributed   among   hia   children 
in   the    following    proportions,    viz. : 
two  shares  to  each  of  his  sons,  and 
one    share    to    each    of   his    daugh- 
ters," and  provided  "  that  none  of  the 
legacies  should  lapse  by  the  death  of 
any  of  his  children,  but  that,  in  case 
of  such  death,  the  share  of  the  de- 
ceased child  should  go  to  his  or  her 
issue  in  the    proportions    aforesaid , 
and   if   such   deceased   child   should 
leave  no  issue,  then  his  or  her  share 
should  go  to  and  among  his  surviving 
children,   in   the    like    proportions." 
Herbert  v.  Tuthill's  Ez'r,  141 

2.  Upon   the  death  of  the  testator,  his 
children  took  vested  interests  in  their 
respective  shares,  although   payment 
could  not  be  made  until  after  the  land 
should   be  sold,   which    in    no   wise 
affected  the  vesting  of  the  estate.    Ib. 

3.  By  this  bequest,  the  whole  interest  or 
estate  in  their  respective  shares,  and 
not  a  life  estate  merely,  vested  in  the 
children,   notwithstanding  there    are 
no  words  of  perpetuity  or  inheritance ; 
the  intent  being  clear.  Ib.  \ 

4.Th«  provision  in  case  of  the  death  of 
any  of  the  children,  with  or  without! 
issue,  refers  to  their  death  in  the  life- 
time of  the  testator,  and  goes  no  far- 
ther than  to  prevent  the  lapse  of  their 
legacies.  It  does  not  amount  to  a  lim- 
itation over,  on  the  death  of  a  legatee 
after  the  testator's  death,  and  before 
receiving  .the  legacy.  Ib. 

5.  H.  S.,  by  his  will  gave  to  his  wife 
"the  sum  of  six  hundred  dollars,  to 
be  at  her  disposal  during  life."  The 
personal  estate  proving  insufficient  to 
pay  the  debts,  the  deficiency  was  ad- 
vanced by  the  executors,  and  the 
widow  died  without  having  received 
or  disposed  of  her  legacy  ;  by  this  be- 
quest, the  widow  took  an  absolute  and 
vested  interest  in  the  legacy  to  her, 


and  not  merely  a  life  estate  with  a 
power  of  disposition  during  life.  Her 
not  having  received  or  disposed  of  it 
in  her  life-time, .  or  the  fact  that  it 
must  now  be  raised  out  of  the  real 
estate  in  the  hands  of  a  purchaser, 
does  not  alter  the  nature  of  her  estate. 
The  Dutch  Church  at  Freehold  v.  Smock, 

L44 

.  When  an  estate  is  given  to  a  person 
generally,  with  a  power  of  disposition, 
it  carries  a  fee.  The  only  exception 
to  this  rule  is,  where  the  testator  gives 
to  the  first  taker,  an  estate  for  life  only, 
by  express  words,  and  annexes  to  it 
a  power  of  disposal ;  in  that  case  the 
devisee  for  life  will  not  take  a  fee  Ib. 

7.  If  the  executor,  while  owner  of  the 
land,  had  paid  the  deficiency  it  was 
liable  to  pay  to  satisfy  debt*  and  lega- 
cies, it  would  have  been  considered 
paid  in  easement  of  the  land,  and  the 
property  would  have  been  discharged. 

Ib. 

8  The  testator  devised  to  his  son  a  farm, 
&c.,  "  to  him,  his  heirs  and  assigns, 
provided  he  had  lawful  issue ;  but  if 
he  should  die  leaving  no  issue  living, 
then  the  said  property  to  be  equally 
divided  between  his  three  sisters." 
These  terms,  "leaving  no  issue  liv- 
ing," are  now  taken  to  mean  a  failure 
of  issue  at  the  time  of  the  death  of  the 
devis.ee,  and  not  an  indefinite  failure 
of  isstTe ;  consequently,  the  estate  de- 
vised, instead  of  being  an  estate  tail, 
must  be  taken  to  be  a  contingent  fee, 
with  an  executory  devise  over.  Wal- 
lington  v.  Taylor,  314 

9.  But  whether  it  be  an  estate  tail,  or  a 
contingent  fee,  the  power  of  the  de- 
visee over  it  is  precisely  the  same ;  he 
has  no  power  to  commit  waste,  to  de- 
stroy the  inheritance.  Ib. 

10.  The  testator  also   bequeathed  to  his 
daughter  Sarah,  five  thousand  dollars, 
"•to  be  paid  to  her  by  the  said  Samuel, 
out  of  the  estate  given    to  him,   in 
annual  payments  of  five  hundred  dol- 
lars a  year."     This  legacy  is  a  charge 
on  the  estate  of  the  devisee,  (in  the  de- 
vised premise*,)  not  upon  his  person  or 
upon  the  land.  Ib. 

11.  Probate  of  a  will  granted  in  one  state, 
cannot  be  used  in  the  courts  of  another. 
Eden's  Ex"r  v.  Rathbone,  331 


768 


INDEX. 


12.  J.  B.  by  his  will  directed  his  execu- 
tors to  pay  the  interest  of  one  moiety 
of    his  estate    to    the    support    and 
maintenance  of  his  nephew  Thomas 
Bullock,  and  B.  his  wife,  and  their 
children.     The  words  "  his  wife,"  in 
this  bequest,  are  to  be  taken  as  mere 
words  of  description,  of  the  person  in- 
tended  to   take,   not   that   she    must 
necessarily  be  the  wife   of  Thomas 
Bullock,   and   take  only  in   that  ca- 
pacity ;   and  her  interest  in  the  be- 
quest is  not  affected  by  a  subsequent 
divorce.     Bullock  v.  Butcher's  Etfr, 

489 

13.  The  testator  devised  as  follows :— u  I 
give  and  devise  to  my  sons,  Abraham 
and  James,  my  farm  whereon  I  now 
live ;  to  them,  their  heirs  and  assigns 
for  ever — to  be  equally  divided   be- 
tween them — provided  they  or  their 
heirs  shall  pay  or  cause  to  be  paid  to  my 
executors  herein  after  named,  the  sum 
of  thirty-five  hundred  dollars,  within 
eighteen   months   after   my  decease, 
which  said  sum  of  money  is  to  be 


paid  by  them  equally,  each  one  half." 
Under  this  will,  the  devisees  took  an 
estate  in  fee  simple  in  the  devised 
premises,  charged  with  the  payment 
of  seventeen  hundred  and  fifty  dollars 
each.  Skillman  v.  Van  Pelt,  51 1 

14.  The  payment  of  this  sum  was  not 
a  condition,  on  the  breach  of  which 
the  right  vested  in  the   executors  to 
sell :    they  could   assert   their   claim 
under  the  will  only  by  suit  or  bill. 

76. 

15.  The  orphans'  court  could  not  decree 
a  sale,  founded  on  the  supposed  breach 
of  any  such  condition :   that  remedy 
exists  in  this  court  alone.  Ib. 

Vide  DO-WEB,  1,  4,  6,  8. 
LEGACY,  1,  7. 


WITNESS. 

Vide  EVIDENCE,  1,  2. 
PKACTICB,  30, 


n 
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